Companies Face Unsure Panorama In Navigating COVID-19 Vaccination Passports For Clients – Employment and HR

Seyfarth Synopsis: In addressing the controversial issue of COVID-19 passports, businesses need to be aware of their obligation to make appropriate changes to their policies, practices and procedures for customers with disabilities.

New York City recently announced that many indoor activities require COVID-19 vaccination certificates. Conversely, some jurisdictions such as Florida and Texas have introduced anti-vaccine passport orders. Like some federal states, the federal administration has taken a supportive position on vaccination orders and announced that federal employees will be required to be vaccinated. But the agency that enforces Title III of the ADA, the US Department of Justice, has not issued explicit guidance on vaccination requirements for public accommodation.

Some companies have announced vaccination requirements for customers, and others are considering implementing such a policy in response to the NYC mandate or on a voluntary basis where permitted. There are important business accessibility considerations that need to be assessed when introducing customer vaccination requirements.

The ADA prohibits public accommodation from applying eligibility criteria that hide or tend to weed out a person with disabilities or a class of people with disabilities, unless they are deemed to be legitimate safety requirements necessary for the safe operation of the facility. To meet this standard, security requirements must be based on actual risk and not on mere speculation, stereotypes or generalizations.

It is likely that compulsory vaccination would apply as an ADA eligibility criterion. The question then arises whether such a requirement would be based on legitimate security considerations. Companies that rely on data on the effectiveness of vaccines to prevent serious illnesses and reduce communicability, as well as rising infection rates from the Delta variant, would likely be on a good basis to take this position.

However, that is not the end of the analysis. A company that has a policy mandating vaccinations for entry must make reasonable changes to its policies, practices and procedures to allow people with disabilities to access their goods, services and facilities, unless those changes are made pose a direct threat to the health and safety of others or fundamentally change the business.

Most companies considering the introduction of mandatory vaccination for entry have to deal with the following questions: whether and how a vaccination policy is published, the employees who should be entrusted with an appropriate change dialogue with the customers, the customers information requested, any “scripts” or internal parameters for this communication and what to do with customers who claim they cannot be vaccinated because of a disability. The last question is of course the most delicate, as there is no such thing as a “one size fits all” solution. The changes a public accommodation must make to a vaccination record policy will vary (e.g., masking, social distancing, field service, online alternatives, evidence of a negative COVID test) based on the type, operation, staff and clientele of the company’s health and health issues Guidelines as well as state or local requirements.

For example, while a private university, cruise line, movie theater, and restaurant in the neighborhood may all qualify as public accommodations with ADA obligations to people with disabilities, the considerations that apply to a vaccination order requirement are not necessarily the same and need to be meticulous assess the organization, its industry and jurisdiction in which it operates, as well as the specific circumstances of any customer requesting an appropriate change to the vaccination policy.

Organizations should also keep clear records of federal, state, and local public health guidelines, including how they evolved over time, to support and document each vaccination passport policy they implement. And the company should document requests for and resolutions to requests for appropriate changes to the Vaccination Policy in the event of a dispute.

Stay tuned to the blog for updates as this issue continues to develop.

The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.