Can Small Businesses Ask Customers for Proof of Vaccination or Require a Vaccine Passport?

Requiring proof of vaccination may be legal in your state, but consider these points before making a decision.

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Proof of Vaccination at Work
Thinking about requiring proof of vaccination for your business? Consider these points.

With vaccinations on the rise after a year-plus of lockdowns, quarantines, and closures, the U.S. is slowly re-opening for business. But while retailers, restaurants, sports arenas, hair salons, and gyms are eager to bring business back to pre-pandemic levels, owners and operators are wondering how best to keep employees and customers safe — while protecting themselves legally.

Requesting proof of vaccination, for many, feels like a natural way to do so. If vaccinations protect people from getting seriously and reduces transmission rates, selectively serving vaccinated individuals seems to make sense.

For some, requiring proof of vaccination represents an infringement on personal freedom, while others reject the idea as classist and racist, creating two camps of people based on access to the vaccine (Black and Hispanic individuals remain disproportionately under-vaccinated as compared to their rates of severe illness and death from COVID-19, according to the Kaiser Family Foundation).

Employees remain split on the matter

The wishes of employees in customer-facing roles further complicate the issue. A recent Workest by Zenefits survey of more than 1,000 small business employees found that 56% of employees who interact with customers are “comfortable” or “very comfortable” interacting with customers who may or may not be vaccinated. Conversely, 44% of employees are not. Additionally, 45% of small businesses do not require employees to be vaccinated, and 24% are requiring employees to be fully vaccinated.

Despite the ongoing debate about the ethics of requiring proof of vaccination, or what your customer-facing employees would prefer, requesting proof of vaccination appears to be legal — at least in some states.

Despite the ongoing debate about the ethics of requiring proof of vaccination, or what your customer-facing employees would prefer, requesting proof of vaccination appears to be legal — at least in some states.

“In states that do not have laws governing vaccine passports, private businesses of any type can govern how they want to do business, which includes requiring a vaccine. Think ‘no shoes, no shirt, no service,’” said Michael Elkins, Esq., founder and partner at MLE Law, a Florida-based labor and employment law firm.

What is your company's policy regarding COVID-19 vaccinations? 24% said their companies require employees to be fully vaccinatedSource: A 2021 Workest by Zenefits survey of more than 1,000 small business employees found 45% of small businesses do not require employees to be vaccinated, and 24% are requiring employees to be fully vaccinated.

What federal and state governments have to say

President Biden said in April 2021 that the U.S. would not require proof of vaccination via paper vaccination records or so-called “vaccine passports,” but some state governments are taking things a step further.

Texas and Florida were among the first state governments to sign into law legislation that prevents businesses from requiring proof of vaccination as a prerequisite for service. Florida Governor Rick DeSantis’ executive order bans any business receiving state funding from requesting proof of vaccination from customers, guests, or patrons, and governors in Ohio, Arizona, and Montana have signed similar orders.

While some states are outlawing the practice, others, like New York, have created their own digital solution. New York’s Excelsior Pass allows users to prove their vaccination status or negative COVID test results in order to gain entry to restaurants, sports auditoriums, and concert halls.

Some business and institutions are already saying yes to the vaccine check

Some companies, industries, and universities have already confirmed mandatory vaccine policies. The cruise industry, hard hit by restrictions from COVID but also major reputational damage after several boats became super spreaders early pandemic, will likely require proof of vaccination for all cruise go-ers. Norweigian and Royal Caribbean have already implemented mandatory vaccination policies for everyone onboard.

Cornell University, as well as Brown and Rutgers, have announced mandatory vaccine policies for students returning to campus next year, with hundreds more expected to follow. Schools, colleges, and universities have long required proof of vaccination to attend and argue that this situation is no different.

How to ask for proof of vaccination

It’s clear that vaccines have become a thorny issue. Some camps say requiring vaccines infringes on personal liberties, while others say there is an existing societal and legal precedent for this matter, as many institutions have long required proof of vaccination.

One rumor circulating on the internet is that asking customers to show proof of vaccination violates the health insurance portability and accountability act (HIPAA). This is untrue.

“Simply asking for information does not violate HIPAA. Disclosing or using information without permission and unlawfully is the violation,” said Andrew Rozo, a NY-based attorney who practices health law.

“Simply asking for information does not violate HIPAA. Disclosing or using information without permission and unlawfully is the violation,” said Andrew Rozo, a NY-based attorney who practices health law.

“HIPAA is designed to prevent health care professionals from revealing health information about patients. But you or I can freely tell anyone we want to about our health, and employers do not violate HIPAA by asking for your information either,” Rozo said.

Despite the legality of asking patrons to prove they’ve been vaccinated, businesses could risk alienating customers by doing so. Especially as many retailers, restaurants, and small businesses have struggled since the pandemic began, many business owners don’t want to risk backlash.

Vaccine passports emerge as the easiest way to do so

For those set on requiring proof of vaccination from customers, how to do so is the question that’s top of mind. While CDC vaccination cards may work for the moment, paper records are not a long-term solution. Since they can be forged or misplaced, many companies are turning to a digital “vaccine passport.”

While President Biden has ruled out any chance of a federal vaccine passport program or requirement, the private sector has long been working on developing a digital solution.

CommonPass and Health Pass are two apps that allow individuals to prove their vaccination status via a scannable QR code on their phone. Health Pass was created by Clear, the same company responsible for ushering users through airport security. It is already being used to gain entry to NBA games and will likely see expanded adoption across other sporting arenas.

Requiring proof of vaccination is perfectly legal as long as there is no state law against it. Business owners must make the decision that best suits their business’s needs, while protecting staff and customers. For some, this may mean requiring vaccines as a prerequisite for service. Other business owners will choose to take precautionary measures, like enforcing social distancing and mask wearing for all.

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