Can Employers Demand Proof of COVID-19 Vaccinations?

Jan 5, 2021

Will the new COVID-19 vaccines be added to the list of mandatory inoculations for school kids? Can employers require their employees to prove they’ve been vaccinated? Can a business refuse to serve customers who’ve refused the vaccine?

Those are questions federal and state regulators will be facing as more Americans have access to vaccines, creating what some fear will be an “immunity caste” system of vaccine haves and have-nots.

The state of New Hampshire’s Department of Justice recently issued guidelines to address some of the difficult questions raised by the slow rollout of the COVID-19 vaccines, such as the use of vaccination cards as so-called “immunity passports.”

“The purpose of this document is to provide employers, employees and businesses with frequently asked questions and answers that may be used to evaluate their options and to assist in responding to inquiries from their communities,” the NHDOJ said in a statement.

Meanwhile, the private sector is moving ahead with new technology like smartphone apps to create digital credentials that could be shown in order to board an airplane, attend a concert, or enter an office building.

According to a CNN report: “The Linux Foundation has partnered with the COVID-19 Credentials Initiative, a collective of more than 300 people representing dozens of organizations across five continents and is also working with IBM and CommonPass to help develop a set of universal standards for vaccine credential apps.”

The question is what governments and businesses will be allowed to do with that information?

Federal and state health officials insist the personal vaccination cards being issued by the Department of Defense with every dose of the vaccine are intended for personal use only. Their purpose is to keep track of which vaccine you’ve received and if/when you’ve received a second dose if needed. New Hampshire’s State Epidemiologist Dr. Ben Chan has compared it to a reminder card from a doctor’s appointment.

But data is data, and the availability of that data has raised questions about how both governments and private businesses might use it. Countries like the U.K., Italy and Chile, as well as states like New York, have discussed the notion of an “immunization passport,” giving people who can document their vaccination status more liberty to conduct business during the COVID-19 crisis. The World Health Organization has discussed the idea as well.

Some people see this as inevitable and argue that it will be a temporary situation once the vaccine is universally available sometime next summer. Others say it’s a problem that should not be ignored.

“We should resist the seemingly intuitive rush to give preference to vaccinated people,” Duke University professor Nita Farahany wrote in the Washington Post. “First, relying on the shots to protect unvaccinated Americans may give people a false sense of security. A restaurant might advertise that all of its employees have vaccine cards, to encourage customers to start dining in again.”

But would that be legal? Could a local restaurant or small business actually do that?

“Yes, employers could require it,” New Hampshire Senior Assistant Attorney General Jill Perlow told InsideSources. “If there’s not a disability, or religious aspect or some other potentially discriminatory issue at play, that would be an allowable restriction that an employer could impose.” And, Ms. Perlow said, barring other necessary accommodations, businesses could require customers to reveal their vaccination status before entering their store, bar or restaurant as well.

New Hampshire is just one state, but the general principle applies: Unless there’s a federal civil rights issue in play, local governments and private businesses are free to request and use vaccination status information if they choose. Determining where to draw that line is almost certain to result in legal challenges.

“Blocking people from ordinary activities on the basis of their vaccination status brings up serious ethical and legal considerations,” write Lindsay Muscato and Cat Ferguson for the Pandemic Technology Project. “Screening people by vaccination status is hard when no country has made vaccination mandatory so far, and there are many cases in which people who might otherwise be eligible (for example, pregnant women or those who suffer from serious allergies) are discouraged from receiving the vaccine while more data is gathered.”

For the moment, the Equal Opportunity Employment Commission says employers are free to ask.

“The EEOC guidance provides that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act,” according to their website. “Thus, employers may request or require employees to provide proof of receiving a vaccine from another provider.”

By Michael Graham