What to Know About the Requirements of COVID-19 Vaccines and Passports for Employees

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The COVID-19 pandemic has wreaked havoc on the business world for the last eighteen months. Unfortunately, with emerging variants that may be a more significant health threat than the initial strain, the threat to workplace safety shows no sign of abating.

While vaccination rates across the nation have been steadily increasing, the vaccine still isn’t recommended for all age groups and cohorts. Moreover, a wide range of personal and religious beliefs have resulted in many individuals declining the vaccine, including a large population of working-age people.

This predicament has led employers to consider their legal rights and duty to uphold public health and safety, including all employees, customers, and partner organizations. A COVID-19 passport is one avenue many companies are considering. However, balancing the rights of individual employees with other concerns brings up many questions that fall under your HR services. Therefore, a review of the requirements related to COVID-19 passports is essential for employers to understand when exploring this policy.

What is a COVID-19 Vaccine Passport?

A COVID-19 vaccine passport is a document that provides proof that an individual has been fully vaccinated against COVID-19. Alternatively, they may also document testing results (including viral load, antibody, or immunity status) or document medical or religious exemptions from vaccination eligibility or requirements. In any instance, the passport is a way to verify an individual’s status with data.

Certain states, such as New York and Hawaii, currently require COVID-19 vaccine passports. These vaccine passports are currently used to regulate international travel and limit some domestic travel. Additionally, some private companies and organizations require vaccination documentation. For instance, several sports arenas and major cruise lines now require proof of vaccination before entry is permitted.

While these passports make sense from a public health perspective, they raise a few concerns, especially regarding individual freedoms and HIPAA protections for medical information. Employers must understand their legal requirements when considering a COVID-19 vaccine passport policy.

Can Employers Require a Vaccine Passports?

The concept of a COVID passport is relatively new. Therefore, the surrounding issues and definitions aren’t as clear-cut as would be ideal. In addition, this type of passport is distinct from other methods an employer may use to promote workplace health and safety. On top of these issues, the science surrounding the virus is evolving rapidly, and safety guidelines also change quickly. Governmental agencies may have conflicting policies. For example, despite CDC recommendations, Florida has issued an Executive order banning governmental entities from issuing COVID passports and businesses.

This policy directly contradicts the US Equal Employment Opportunity Commission’s recent guidance that upholds those employees can be required to show proof of vaccination before returning to work. Despite this guidance, it is also essential that employers accommodate scenarios where an employee cannot receive the vaccine for disability-related or religious reasons.

How to Implement a COVID Passport in the Workplace?

The COVID pandemic has forced many employers to adopt new workplace health and safety protocols. Activities such as face mask mandates, social distancing policies, and temperature checks are now standard practice in many workplaces, even if these policies would be unheard of before the pandemic. Complying with the Occupational Safety and Health Administration (OSHA) policies is now of vital importance to many employers, but also presents HR challenges.

Related to COVID passports and vaccines, employers must consider how to track vaccination status if they should choose to do so. There is no requirement that employers track vaccination status. Similarly, there is no mandate that employers require employees to become vaccinated. It is permissible if the employer should choose to implement these requirements, though.

And many employers that require travel or have a high level of community interaction may want to consider COVID vaccination passports. There are several ways to do so, and these are often supported by technology. If we look at New York’s requirements, the state uses what is called Excelsior Pass. This mobile application can show digital proof of an individual’s COVID-19 vaccination or recent negative test results to demonstrate that they meet the requirements. This platform uses blockchain technology to ensure that data remains safe and secure, which is of the utmost importance.

Legal Concerns with COVID Passports

The requirement for vaccination and providing proof of vaccination brings up many legal concerns. First and foremost, the employer must understand the potential liability and risk of using technology to access data, particularly if biometric data is collected. While vaccination status isn’t considered biometric data, fingerprint scans or facial recognition technologies rely on this type of data. And several states have laws that impose restrictions on the use, collection, storage, or dissemination of this data.

Employers must also comply with federal, state, and local equal employment opportunity and anti-discrimination laws. Compliance often means that the employer must be prepared to provide reasonable accommodations to employees with a disability or those whose religious beliefs prevent vaccination. It’s also important to note that discrimination claims may arise if the employer grants privileges, such as travel and conference attendance opportunities, to those who are vaccinated but do not allow it for those unable to be vaccinated for a protected reason.

On the other hand, a passport requirement could protect employers from additional legal issues. For instance, if an employee contracts COVID, they may claim that the lack of a vaccine requirement represents a failure by the employer to take reasonable and necessary measures to protect the health and safety of workers and customers.

Is A COVID Passport the Right Option for My Business?

The question of whether or not to implement a COVID passport is one that must encompass many different – and often competing – concerns, such as:

  • Local, state, and federal guidelines and mandates related to COVID
  • Travel needs and restrictions
  • Industry standards and best practices
  • Business and workforce needs and expectations
  • Requirements for property entry by property owners

As you can see, this question is a complex one, rather than one with a straightforward answer. Contact CA HR Services today to learn more about employers’ requirements and concerns with COVID-19 vaccines and passports.

CA HR Services specializes in working with small and medium-sized companies to help develop legal, efficient, and appropriate H.R. processes and procedures that meet state and federal labor law requirements.