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“No Vaccine, No Service” – Can A Business Require Customers to be Vaccinated?

by | Apr 8, 2021 | Business Litigation, Employment & Labor Law

As we start to return to normal, many businesses are eager to start the recovery process after surviving 2020. However, many businesses are also keeping in mind the safety of their employees and their customers as capacity limits are eased.  Recently, some businesses floated the idea of requiring all customers to provide proof of vaccination in order to patronize their businesses.  While the reasoning behind these policies is certainly well-intentioned, there are significant downsides to implementing such a policy that shouldn’t be ignored.

Is it legal?

Simply put: maybe. Under Federal law, a mandatory vaccination policy is likely legal to some degree, but it will depend on the policy itself, what reasonable accommodations are available to those who are medically exempted from being vaccinated, as well as potential state laws that may further restrict – or empower – such policies.

State law will likely be one of the biggest factors. For example, Virginia law already gives the Virginia Health Commissioner the power to require all adults to be vaccinated in the case of an epidemic, unless a physician certifies that a “vaccine would be detrimental” to their health.[1] While Virginia’s governor, Ralph Northam, has stated as recently as December that there are no current plans to mandate vaccinations in Virginia, if the Health Commissioner did put a mandate in place, then that could be interpreted by the courts as implicitly permitting businesses to enact policies requiring vaccinations.

On the other hand, currently pending legislation in Maryland’s House would prohibit employers from firing any employee who refuses to be vaccinated against COVID-19.[2]  If such a bill is enacted, it would create significant legal hurdles for any business attempting to require customers to be vaccinated.

Medical exemptions and the ADA

One of the biggest hurdles to businesses looking to enact a customer vaccine policy will be providing reasonable and comparable alternatives to those customers that are not vaccinated for medical reasons.  Under Title III of the Americans with Disabilities Act (“ADA”), “public accommodations” must provide “full and equal enjoyment” of their facilities, goods and services to disabled customers, although there is an exception for persons who pose a “direct threat” to the health and safety of others.[3] “Public accommodations” includes most private businesses that are open to the general public and affects commerce, meaning virtually every business will be subject to the ADA requirements.[4]

There is legal precedent for state level vaccine mandates, and the EEOC has also issued recent guidance indicating that employers may be able to mandate employees are vaccinated (in accordance with the ADA’s requirements for employers). But this does not guarantee whether a business will be able to require customers show proof of vaccination in order to enter their business.  Any analysis will likely factor in the nature of the business itself.  Restaurants, breweries, vineyards, hotels, concert venues, bars and other businesses where patrons cannot always be masked may have stronger arguments in favor of requiring vaccines, while businesses where customers can be constantly masked may have less of an argument.

Even if a business has a strong argument in favor for enacting a vaccine certification policy by the nature of services provided, they still will likely be required to provide a reasonable accommodation – likely a comparable alternative for those customers who are medically unable to be vaccinated (and thus likely qualify for the ADA’s protections).  What satisfies this alternative is going to be highly dependent on the circumstances.  If a restaurant has outdoor seating or offers curbside service, that may be a valid accommodation.  A business also has to consider whether it is worth requesting customers provide a medical exemption, and what exactly that would entail.

Religious exemptions

Based off the trend of decisions against plaintiffs who claimed mask mandates violated their religious freedoms, a customer who claims that a “no vaccine, no service” requirement constitutes religious discrimination under Federal law probably won’t have much success in the courtroom.  However, if states choose to enact religious exemptions or protections for unvaccinated persons, then businesses in those localities will need to also provide accommodations for customers claiming their religious beliefs prevent them from becoming vaccinated.  Any business considering implementing such a policy should check with a local lawyer to confirm what the state level laws and requirements are.

A false sense of security

Finally, many medical professionals have been recently raising concerns that implementing these kinds of policies at this point are premature.[5]  This isn’t just because vaccines still aren’t available to the general public in most states (and while that is changing, it will take time to reach herd immunity).  The jury is still out as to how long these vaccines effectively prevent – and lower the rate of transmission – of COVID-19.  Newly emerging variants may also decrease the effectiveness of the vaccines.  As the immunity provided by a vaccine wears off, those who have shucked the mask may end up unknowingly creating another surge in COVID-19 cases.  Thus, mask mandates are likely here to stay in many areas of the country, and many businesses will likely need to continue requiring masks (whenever possible) for until we know more about the efficacy period for these vaccines.

A more balanced approach?

This is a rapidly developing area of the law, and any trailblazers may very well end up being the ones setting the legal precedent.  This is true even a business’s customer base or locality is generally in favor of a vaccine requirement.  There are also cultural impacts to consider, including that such policies may inadvertently discriminate against BIPOC patrons who, due to a history of abuses by the medical profession, are more distrustful of the COVID-19 vaccine.[6]

For those businesses that want to help encourage vaccinations in their communities but don’t want to become legal test subjects, there are valid alternatives.  After Krispy Kreme offered a free donut to anyone who shows their vaccine card, many other businesses followed suit and offered their own special vaccine discounts or rewards.  This both helps drive up enthusiasm and customers without excluding those customers whose health prevents them from getting vaccinated.

[1] Va. Code § 32.1-48

[2] https://trackbill.com/bill/maryland-house-bill-1171-labor-and-employment-maryland-employee-protection-plan-for-vaccine-refusal/2019617/

[3] 42 U.S.C. §12182.

[4] 42 U.S.C. §12181(7).

[5] https://www.jdsupra.com/legalnews/can-businesses-require-proof-of-covid-2514818/

[6] https://www.nbcnews.com/news/us-news/racial-disparities-create-obstacles-covid-19-vaccine-rollout-n1249627

Elizabeth Payne-Maddalena is a Senior Associate at Berenzweig Leonard. She can be reached at [email protected]