Title VII & ADA Accommodations
Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits public accommodations from denying individuals access to the facility or services based on the individual's race, color, national origin, religion, or sex.[1] Examples of public accommodations include restaurants, hotels, movie theaters, doctors' offices, pharmacies, and retail stores.[2] Customers with a sincerely held religious belief, practice, or observance that equates to that of traditional views may request reasonable accommodations for their religious practice in lieu of showing a Vaccine Passport.[3] Reasonable accommodations can include continuing to wear personal protective equipment. For more information regarding accommodations, see my previous blog post discussing whether employers can implement a vaccine mandate.
While political beliefs do not constitute religious practices, public accommodations must allow for unvaccinated customers citing religious reasons to enter the store wearing personal protective equipment.
The Americans with Disabilities Act ("ADA") requires businesses open to the public to provide individuals with disabilities equal access to goods and services.[4] Customers who have established a disability, as defined by the ADA and the Ohio Civil Rights Act, can also request a reasonable accommodation in lieu of providing a Vaccine Passport.[5]
While the Equal Employment Opportunity Commission ("EEOC") has not provided insight into whether businesses can ask customers for proof of their disability, the best practice is to ask the customer one question: Are you unable to be vaccinated because of a disability? If the answer to the question is yes, then the business should engage in the interactive process, likely resulting in the individual with a disability wearing personal protective equipment in order to enter the business. If this individual also cannot wear a mask because of their disability, the EEOC has stated that the COVID-19 pandemic meets the direct threat standard and the business could possibly exclude the individual as the unvaccinated customer would pose a direct threat to other customers. However, as more and more people are vaccinated, the likelihood of the individual carrying COVID-19 dwindles and prohibiting the individual from entering the store may result in more harm than good.
Businesses should work with counsel to develop training policies for employees regarding Vaccine Passports and how to handle individuals seeking accommodations for their religious practice or disability. If the business decides to require Vaccine Passports for entry, the current COVID-19 signage should be updated reflecting that a Vaccine Passport is required but that exceptions can be made for religious practices or individuals with disabilities.
Privacy Concerns
Each state has their own privacy laws and these apps will have to comply with every single one to protect their users' privacy. California, Nevada, and Utah require nonfinancial businesses to disclose to customers the type of personal information the business shares with or sells to a third party for direct marketing purposes or for compensation.[6] Only California law allows customers to opt out and instruct the business not to share their information with third parties.[7]
Users will be uploading sensitive health information to these apps that could include their name, birthdate, address, and dates of vaccination. Since users can only opt out in California, users should be thinking about how exactly the app is using and possibly selling their information. Users will have to personally grapple with uploading their health information to an app for the sake of being able to use the app for their Vaccine Passport.
Businesses should consider seeking counsel to revise their privacy policy related to COVID-19 vaccinations and ensure the privacy policy is in compliance with state law.
Practical Considerations
While asking customers to show a Vaccine Passport is legally permissible, there are a few other issues to consider before requiring all customers to show proof of a vaccine. First, the vaccine roll-out has been slow and requiring a Vaccine Passport should wait until more of the country is vaccinated. Second, regardless of timing, not all customers will have access to the Vaccine Passport. People who cannot afford a smart phone will not be able to show their Vaccine Passport and scan the QR Code. While they could print off the QR Code from online, they also may not have access to a printer. Additionally, the combination of paper documents and smart phones will lead to a slowdown of scanning and may cause customers to have to wait to enter the store and lead to a loss of business. Finally, smaller businesses should consider waiting until the larger franchises create the standard. Requiring a Vaccine Passport while other businesses do not have this requirement will lead to some customers choosing other businesses for the sake of convenience.
While the law and technology are evolving and vaccine administration is slow-moving, businesses should hold off on requiring a Vaccine Passport for the time being. Businesses should continue to comply with local, state, and federal guidelines and continue to require masks and social distancing.
Applicable laws, regulations, and guidance are ever-changing regarding this issue so it is important to consult with counsel before requiring customers to show a Vaccine Passport. Faruki lawyers are experienced at assisting businesses with navigating these issues and have been staying up to date regarding the changing landscape of COVID-19 laws and regulations.
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[1] 42 U.S.C. 2000(a).
[2] 42 U.S.C. 2000(b).
[3] 42 U.S.C. 2000(e)(j).
[4] 43 U.S.C. 12182.
[5] 42 U.S.C. 12102(1); Ohio Adm. Code 4112-5-02(H); R.C. 4112.01(13).
[6] Utah Code Ann. 13-37-201; NRS 603A.340; Calif. Bus. & Prof. Code 22575.
[7] Cal. Civ. Code 1798.120(b).