Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Vaccine passports—standardized credentials showing proof of vaccination—are gaining momentum in some states as a means of returning to normalcy and allowing businesses to open fully to those who prove they have been inoculated against COVID-19. A Florida executive order now prohibits businesses operating in Florida from implementing such measures with respect to customers.
On April 2, 2021, Florida Governor Ron DeSantis signed Executive Order 21-81. The executive order prohibits businesses from requiring that patrons and customers show proof of vaccination to enter or receive service from a business. The order does not, however, prohibit businesses from instituting other COVID-19 screening protocols to protect public health. State agencies will work to ensure that businesses comply with the mandate, and businesses that do not comply will be ineligible for contracts or grants funded through state revenue. The order is intended to remain in place for the duration of the COVID-19 Florida State of Emergency, but the governor has already stated the Legislature is working on making the mandate permanent. The order also prohibits Florida governmental entities from issuing vaccine passports or other certifications of vaccination status.
Notably, the order does not prohibit businesses from requiring their own employees from showing proof of vaccination. Vaccine passports may be a viable option in the context of the employer-employee relationship in Florida. Vaccine mandates may be particularly appealing to some employers, but employers must carefully analyze the implications of such a program. For example, late last year the Equal Employment Opportunity Commission issued guidance to employers about vaccine mandates, noting that, while they are not prohibited, employers must account for religious beliefs and physical disabilities. For example, an employer could potentially run afoul of the Americans with Disabilities Act by inquiring into the reasons why an employee chose not to receive a vaccine. Moreover, employers vaccinating their employees must be careful about medical screening questions in light of religious beliefs, disabilities, and the prohibition against discriminating against employees based on genetic information under the Genetic Information Nondiscrimination Act. Employers should also be careful about treating unvaccinated employees differently when this is related to membership in a protected class.
Vaccine passports also have special implications for employers with a unionized workforce, as the National Labor Relations Act requires that unions and employers bargain in good faith about terms and conditions of employment. The requirement that employees be vaccinated could be considered a term or condition of employment subject to collective bargaining, such that failure to bargain in good faith could lead to an unfair labor practice action before the National Labor Relations Board, or, for a Florida public employer, the Public Employees Relations Commission.
The mandate against vaccine passports for patrons and customers makes it even more necessary for businesses to remain vigilant about implementing and enforcing protocols designed to prevent the spread of COVID-19 to not only protected patrons and customers, but also protect employees.1 As a result, businesses that have not already done so should consider updating their COVID-19-related policies and employee handbook to require compliance with authoritative or controlling government-issued health standards or guidance to prevent the spread of COVID-19.
1 Notably, recent legislation also makes those policies helpful to prevent COVID-19 related claims. See Rocio Blanco Garcia and Stefanie Mederos, Florida Legislature Imposes High Standard for Claims Against Businesses Based on Damages from COVID-19, Littler ASAP (Mar. 31, 2021).