The 5 Things to Do When Implementing a Vaccine Passport Policy at Your Lab

Like many labs and other health providers, you might have been undecided about whether to mandate that your employees get the COVID-19 vaccine. However, now that the FDA has fully approved a coronavirus vaccine, namely, the Pfizer BioNTech, you are on much stronger legal ground in requiring that employees get vaccinated. One strategy that may work, especially for labs that aren’t administering the vaccine for their own employees, is to implement a vaccine passport, i.e., a policy requiring personnel to present proof of their vaccination status to gain entry to the workplace.

What Is a Vaccine Passport?

A “vaccine passport” is a commonly accepted means of showing that a person has received the COVID-19 vaccine. Some foreign governments are creating official, uniform cards that individuals must display. (Go to this link for a visual summary of vaccine passport laws in each state.) However, passports can take many forms, both digital and hard copy, including a signed letter from a doctor, certificate from a vaccine provider or even a personal attestation.

In the workplace context, employers may require employees and perhaps customers, vendors and other visitors to produce their “passport” to gain entry into the facility. Those who cannot or will not do so aren’t allowed in.

Are Vaccine Passports Legal?

The first thing you need to do is check the laws of your state. There are six states (Alabama, Florida, Iowa, Kansas, North Dakota, South Dakota and Texas) where it’s illegal for businesses, including labs, to implement a vaccine passport. A few other states, including Georgia and Missouri, are considering adopting similar legislation. But in most states, including those that have banned governments from using them, vaccine passports are allowed—or at least not prohibited. (In two states, New York and Hawaii, they’re actually required.)

Even so, there are limitations under personal privacy and discrimination laws. Essentially, where it’s not legally banned, a lab could have a vaccine passport policy under five conditions:

1. There’s an evidence-based need to verify vaccination status to prevent transmission at your lab workplace;
2. There are no less restrictive alternatives;
3. You comply with privacy laws by requiring no more personal information than you need to verify vaccination status;
4. You comply with the Americans with Disabilities Act (ADA) and other discrimination laws by making reasonable accommodations to the point of undue hardship; and
5. You constantly monitor and revise your policy as public health guidelines and the pandemic situation evolves.

LAWSCAPE: Vaccine Passport Laws by State Unless and until courts bar vaccine passports, the states must decide whether to establish—or ban—passport systems within their own boundaries. Here’s a visual depiction of where each state currently stands on the vaccine passport issue:

The 5 Legal Guidelines

Until courts weigh in, all of what we know about the legality of vaccine passports in states where they’re not expressly banned comes not from statutes or regulations but government guidance. From almost the moment the public health emergency began, the U.S. Equal Employment Opportunity Commission (EEOC), public health departments and other government agencies have made it clear that, at least for the time being, normal privacy and discrimination protections give way to the imperative to stop COVID-19.

And that means private sector labs (outside Alabama, Florida, Iowa, Kansas, the Dakotas and Texas) may have some leeway to implement mandatory vaccine policies in the workplace. According to the EEOC, “under the ADA, an employer may require an individual with a disability to meet a qualification standard applied to all employees, such as a safety-related standard requiring COVID-19 vaccination, if the standard is job-related and consistent with business necessity.”

Even so, privacy and discrimination laws remain very much in play and there are limits to how far labs can go to prevent COVID-19 from spreading in the workplace. The key to compliance is keeping your vaccine passport protocols within these boundaries. There are five things you must do to accomplish that goal.

1. Ensure Vaccine Passports Are Needed to Prevent Workplace Infection Risks

While medical screening of any kind is privacy invasive, public health guidelines call on employers to perform it to ensure persons with infections, symptoms or recent exposure don’t get into the workplace and infect others. Vaccination passports are essentially an extension and different form of medical screening.

However, you can’t just take it for granted that a passport system is necessary in your own workplace. Guidelines stress the need for making “evidence-based” decisions based on an assessment of the actual transmission risks at the particular facility based on risk factors like:

• Whether employees work alone or with others or work inside or outside;
• The available ventilation;
• Frequency and duration of direct interaction employees typically have with others at the lab;
• The number of partially or fully vaccinated individuals already in the workplace;
• Whether employees wear masks or undergo routine screening testing;
• The space available for social distancing; and
• Current CDC and other public health guidelines.

2. Consider Less Intrusive Alternatives

Vaccine passports must also be “proportional” to the risks they address, and resorted to only when there are no less intrusive methods available for containing infection risks. Less intrusive alternatives may include social distancing, face masks and allowing employees to work from home.

3. Minimize Privacy Intrusions

Whether a person has received a vaccination would be deemed protected health information (PHI) that HIPAA and other privacy laws ban employers from collecting, using or disclosing without consent. Exception: Employers generally don’t need consent to collect PHI to carry out legitimate and essential employment functions. Requiring proof of vaccination may also constitute an inquiry about a person’s disability banned by the ADA.

However, during the pandemic, government guidelines have consistently allowed pre-entry medical screening as a legitimate and, in many cases, required infection control measure. These same principles also apply to requiring proof of COVID-19 vaccination. Caveat: You’re allowed to use only the minimum PHI necessary to accomplish this purpose. Example:

• OK: Asking employees if they’ve been vaccinated for COVID;
• Not OK: Asking employees if they have any non-COVID-19 related medical conditions or what medications they use.

Strategic Pointer: Keep a list of employees who produce verification of vaccine rather than ask them to produce a passport each time they seek entry into the lab.

4. Make Necessary Accommodations

Differentiating between employees who are and aren’t vaccinated involves risk of illegal discrimination, especially when the reason they’re not vaccinated is due to disability, pregnancy, religion or other personal characteristic protected by federal, state or local equal opportunity laws, rather than a mere personal preference. Accordingly, employers must accommodate people who are unable to get the vaccine due to a protected characteristic to the point of undue hardship. Accommodations may include letting employees work from home or allowing them in but requiring them to self-isolate, wear a mask at all times and/or engage in medical self-monitoring.

The EEOC says you can still bar protected persons from the workplace because they’re not vaccinated if you determine that allowing them to enter would pose a “direct threat” in the workplace. Condition: You must first make “an individualized assessment of the employee’s present ability to safely perform the essential functions of the job” based on four risk factors:

• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur; and
• The imminence of the potential harm.

5. Constantly Monitor and Modify Your Policy

If you do implement a vaccine passport policy, keep it in effect for the shortest possible length of time. You also need to constantly monitor the most recent public health guidelines and health situation and change the policy accordingly. It’s a dynamic equation that you must constantly revisit as the situation changes.