The Battle Over Vaccine Passports Heats Up

By DR. JOY MARTINEZ, Staff Writer

A popular Durham bar is the latest business to announce that it will begin requiring indoor patrons to show proof of vaccination for COVID-19. Kingfisher, on East Chapel Hill St., announced via social media Tuesday that the new policy would start on Aug. 17. Outdoor seating at Kingfisher will continue to be open to all guests, regardless of vaccination status.

In their social media statement, the bar explained , ”This decision is not motivated by fear, but rather by a desire to care for our community, as they’ve cared for us. We care about providing the safest work environment for our team, and we care that everyone who enters our door believes we are providing the safest possible environment for guests,” owners wrote in a Facebook post. “We value every single person who has ever supported Kingfisher and look forward to the day when we can welcome all folks into our basement bar. But for now, we ask for your understanding and cooperation so that we can keep our indoor bar open and continue to serve our community safely.”

As the state recorded its highest COVID-19 cases in months, one of the Triangle’s most popular pizzerias announced dine-in service would be limited to vaccinated guests.

Raleigh’s Players Retreat was the first to make such a requirement when it reopened its doors in June, serving people indoors for the first time in more than a year. Players Retreat gives diners a “PR — I am Vaxxed” button to wear on visits once they prove their vaccination status.

Carrboro’s Pizzeria Mercato announced that it will require proof of vaccination for diners planning to eat inside at the restaurant. Owner Gabe Barker said proof could be either the physical vaccine card from the Centers for Disease Control and Prevention, or a digital photo of it. In the future there will likely be a button or pin that diners can wear once they’ve proved their vaccination status. “Health and safety are my top priority,” Barker said.

Pizzeria Mercato only reopened its dining room in June, and the restaurant doesn’t have any outdoor seating. Takeout has largely been its only business for more than a year. In that time, Barker said some diners, including older diners, ordered takeout three or four times a week. The restaurant is only open four days a week. “Our industry has changed forever,” Barker said. “The people who kept me in business, who ordered takeout every single week for most of the last year, I don’t want them to feel like they can’t feel safe in my restaurant.”

Some Americans have expressed concerns that being asked to provide proof of vaccination status violates privacy laws like HIPAA. However, what HIPAA protects is very narrow. In 1996, President Bill Clinton signed HIPAA into law. The law prevents certain people and organizations, including healthcare providers, insurers and health data clearinghouses, from sharing a patient’s medical records without their explicit consent.

HIPAA only applies to how companies covered by the law protect the health information they receive. “That would be your physicians, hospitals, nursing homes, dentist, physical therapist. Most healthcare providers would fall into this class. Disclosing patients’, employees’ or visitors’ protected health information to outside entities is a HIPAA violation. Failing to implement reasonable safeguards to protect health information is also a HIPAA violation.

HIPAA does not apply to the average person outside of healthcare. So, businesses have the right to ask you for proof of vaccination.

Scott Loughlin, Partner and Co-Leader of the Privacy and Cybersecurity group at the law firm Hogan Lovells explains there’s nothing generally in federal law prohibiting a business or organization from asking for your vaccination status. Where it could become an issue, though, is if more follow-up questions are asked. He said where this could go wrong is, if someone says they’re not vaccinated, following up with a “Why not?”

“That can raise a number of more sensitive issues,” Loughlin said. “Is there an underlying health condition which makes you unable to get a vaccine? Do you follow a religious practice that makes getting a vaccine something that you’re not able to do?”

The Occupational Safety and Health Administration (OSHA) will also disseminate COVID-19 related health and safety rules, based upon the premise that unvaccinated employees present a ‘direct threat’ to others in the workplace. Currently, OSHA is relying on the CDC for guidance, but once the possibility of disability or religious discrimination comes into play, federal protections like the Americans with Disabilities Act (ADA) and the First Amendment’s guarantee of freedom of religion would step in.

Antonio Coronado, a service worker, brought claims under the New York State and New York City Human Rights Laws in court, claiming his employers’ decision to place him on furlough until he got vaccinated violated his “religious and ethical convictions” and discriminated against him “based upon his physical condition.” There are similar lawsuits brought by employees all over the country under federal, state, and local anti-discrimination laws.

“So essentially, the EEOC said you can ask about vaccination status,” Stephen Riga, an attorney with Ogletree Deakins in Indianapolis explained. Questions of legality and ethics pop up when follow-up questions about why an employee did not receive a vaccination arise. Such inquiries may elicit disability-related information, according to the EEOC, and would be subject to the ADA’s requirement that questions be “job-related and consistent with business necessity.” When it comes to the job itself, a case filed in the US Court for the Northern District of Illinois argues that the employer’s imposition of a vaccine mandate – even one that allows accommodations for employees’ religious beliefs and disabilities – alters the terms and conditions of employment in violation of Collective Bargaining Agreements entered into by the union.

International Brotherhood of Teamsters, Local 743 v. Central States, Southeast and Southwest Areas Health and Welfare Pension Fund makes no argument about the vaccine approval process or the employer’s legitimate interest in promoting workplace safety. Instead, the claim characterizes the employer’s vaccine mandate, which requires unvaccinated employees to use all of their paid time off and then face discipline (up to and including termination) unless and until they get vaccinated, as imposing a new restriction on the union members’ employment without going through the negotiation process required by the agreements and federal law protecting union rights. For instance, the National Labor Relations Act requires an employer to collectively bargain in good faith with the union over subjects that directly impact “rates of pay, wages, hours of employment, or other conditions of employment.”

The Teamsters Union argued that the vaccine mandate creates a new “condition of employment,” and requirements on how employees must use their paid time off without going through the mandatory bargaining process. It remains to be seen how the court will handle this claim, but other unions with members opposing vaccine mandates are likely to bring similar claims if the Teamsters Union has any success here.

But there is conflicting authority. In December 2020, the EEOC released guidance clarifying that an employer’s request for an employee’s vaccination status was not a disability-related inquiry and that COVID-19 vaccination itself is not a medical examination. Thus, a request by an employer for vaccination status does not implicate the ADA.

In its updated guidance, the EEOC takes the position that the ADA’s confidentiality requirement applies to information about an employee’s vaccination status, regardless of how such information is obtained. The question is, if an employee must confidentially ask about your status, should a random stranger be able to ask?

New York Mayor Bill de Blasio announced that later this month the city will begin requiring anyone dining indoors at a restaurant, working out a gym or grabbing cocktails at a bar to show proof they’ve been inoculated. Workers at such establishments would also have to prove that they’ve had at least one shot of an approved vaccine.

The mandate is being closely watched by other cities for some as a model, but perhaps as a possible example of governmental overreach. For almost two years the pandemic has forced the country into a reckoning over how and where people gather, how many gather, whether they should be required to wear masks and how far to push them into getting vaccinated.

“Anything less than vaccination isn’t going to get us where we need to go,” the mayor insisted. “It’s pretty straightforward,” de Blasio said. “You check their vaccination status. If they have it, great. If they don’t, turn around.”

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