By: John W. Egan

Seyfarth Synopsis: In navigating the contentious issue of COVID-19 passports, businesses need to be aware of their obligations to make reasonable modifications to their policies, practices and procedures applicable to patrons with disabilities.

New York City recently announced that it would require COVID-19 vaccination passports for many indoor activities. Conversely, some jurisdictions such as Florida and Texas have implemented anti-vaccine passport orders.  Like some states, the federal administration has taken a supportive position on vaccination mandates, announcing a vaccination requirement for federal employees. But the agency that enforces Title III of the ADA, the U.S. Department of Justice, has not issued explicit guidance for vaccination mandates by public accommodations.

Some businesses have announced vaccination requirements for patrons, and others are considering whether, in response to the NYC mandate or on a voluntary basis where permissible, to implement such a policy.  There are important disability access considerations for businesses to evaluate in imposing vaccination requirements for patrons.

The ADA prohibits public accommodations from applying eligibility criteria that screen out or tend to screen out a person with a disability, or any class of people with disabilities, unless they qualify as legitimate safety requirements necessary for the safe operation of the facility.  To meet this standard, the safety requirements must be based on actual risks, and not mere speculation, stereotypes or generalizations.

It is likely that a vaccination requirement would qualify as an ADA eligibility criteria.  The question then becomes whether such a requirement would be based upon legitimate safety considerations.  Businesses that rely on data addressing the effectiveness of vaccination to prevent severe disease and reduce transmissibility, and surging infection rates due to the Delta variant, would likely be on a strong footing to take this position.

That, however, is not the end of the analysis.  A business that has a policy requiring vaccinations for entry must make reasonable modifications to its policies, practices, and procedures to provide individuals with disabilities with access to their goods, services, and facilities, unless such modifications would present a direct threat to the health and safety of others, or fundamentally alter the business.

Most businesses considering implementing a vaccination-for-entry requirement will need to consider questions such as: whether and how to publicize a vaccination policy, the employees to be tasked with having a reasonable modification dialogue with patrons, the information to be requested of customers, any “script” or internal parameters for that communication, and what to do with customers who claim they cannot be vaccinated because of a disability.  The last question is obviously the most thorny since there is no “one size fits all” solution.  The modifications a public accommodation must make to a vaccination passport policy will vary (e.g., masking, social distancing, outdoor service, online alternatives, proof of negative COVID test) based upon the nature, operations, staffing, and clientele of the business, public health considerations and guidance, as well as state or local requirements.

While a private university, cruise line, movie theater, and neighborhood restaurant, for example, may all qualify as public accommodations with ADA obligations to individuals with disabilities, the considerations informing any vaccination mandate are not necessarily the same and need to be thoughtfully evaluated based on the organization, its industry, and the jurisdiction where it operates—as well as the specific circumstance of each patron requesting a reasonable modification of the vaccination policy.

Businesses should also keep a clear record of federal, state and local public health guidance, including their evolution over time, to support and document any vaccination passport policy that they implement.  And, the business should document requests for, and resolutions of, requests for reasonable modifications to the vaccination policy in case of litigation.

Stay tuned to the Blog for updates as this issue continues to develop.

Edited by Kristina Launey and Minh Vu