In the Balance Between Safety and Privacy, Federal and State Laws Favor Safety
As the world enters a “new normal”—a society which is not quite post-pandemic, but which seems to be through the worst of COVID-19—business owners face the new challenge of protecting employees and customers now that vaccines are widely available, and masks are no longer mandated for the vaccinated in many public settings.
Many bristle at the notion of requiring vaccination for employees or of requesting proof of customers’ vaccination status. These issues occupy many lines of print in the editorial pages and many hours of debate on the news. Yet, setting aside questions of how to avoid PR troubles or how to most diplomatically make these requests, both federal and Massachusetts law favor business operators’ and employers’ efforts to make their premises safer.
Requiring and Confirming Employee Vaccination: Well-Tread Legal Ground
In the early stages of the vaccination campaign, the Equal Employment Opportunity Commission (EEOC) preempted claims that vaccine-related questions directed at employees are discriminatory. The EEOC found that requiring proof of vaccination as a condition of employment was not a “disability-related inquiry” in and of itself and as such did not violate the Americans with Disabilities Act (ADA). Follow-up questions as to why an employee was not vaccinated, or requests for further medical information, might pose ADA compliance issues, but the initial question itself is certainly protected.
A recent https://www.reuters.com/business/healthcare-pharmaceuticals/judge-tosses-houston-hospital-workers-lawsuit-over-vaccine-requirement-2021-06-13/ in federal court builds on the legal grounds for requiring employees to provide proof of vaccination. In reviewing the wrongful termination suit of Texas hospital employees who refused the vaccine and as such were barred from returning to work, U.S. District Judge Lynn Hughes not only dismissed the case but made it clear in her decision that she found the plaintiffs’ arguments to be meritless.
Asking Customers Their Vaccine Status Is Not a HIPAA Issue
Misleading information on social media, that asking for their vaccination status is a violation of HIPAA, or the Fourth Amendment to the United States Constitution, or the Civil Rights Act. Some customers, if asked that they put on a mask if they have not been vaccinated, will cite these arguments for not abiding to the request.
While the issue of handling belligerent or impolite customers is a thorny one for any business, the legal arguments they cite are without merit and will be seen as such by the courts, should they choose to escalate the dispute. HIPAA regards medical records and information and applies to healthcare professionals. The Fourth Amendment only restricts the actions of the federal government, not private businesses. Vaccination status is not a protected class under the Civil Rights Act or any other federal law.
While some states have banned vaccine passports and questions about vaccination status, Massachusetts has made no such move, and business operators are legally free to make reasonable requests to protect the safety of their premises—just as a waiter might ask if there are any allergy concerns at the table when taking an order that includes allergens.
Legal Representation You Need to Make the Most of Our New Normal
The situation in which we find ourselves is a new and evolving one; the issues of masking and vaccination are politically and emotionally charged. While existing law tends to favor those asking about vaccination, rather than those being asked, business owners would be wise to consult with experienced business liability attorneys about their particular situation. Our team is here to help your business succeed in a post-pandemic world. Call today to discuss.
