Vaccinations, masks, and small business rights

Higher vaccination rates in the United States mean a quicker return to normalcy. As of March 2021, almost 171.5 million doses have been administered across the country. By fall, the goal is a fully vaccinated workforce. This is good news for small businesses; owners and employees can get back to work and provide products and services to customers.

To ease into normalcy, small businesses may require employees and customers to show proof of vaccination. But there is no definitive guidance, at least right now, about whether vaccine passports will be the wave of the future.

“The governor of Idaho signed an executive order this week banning the state from mandating or issuing vaccine passports," says Brian Weinthal, a Chicago attorney and partner at Burke, Warren, MacKay & Serritella, P.C. Utah, Texas, and Florida have similar executive orders.

Because guidelines are still up for debate, Weinthal encourages small businesses to stay prudent and stand by safety protocols.

Wha can small businesses require of employees and customers?

A vaccination card brings peace of mind to employers, employees, and customers. For small businesses, in most instances, an employer can require employees to get vaccinated and provide proof to preserve a safe workplace.

The card “serves as proof that an individual has received a COVID-19 vaccine," says Brian Casaceli, a Massachusetts attorney with the firm Mirick O'Connell. In states where private businesses require “customers provide proof of vaccine to receive services, it will be necessary for customers to have their vaccination cards on hand."

Jessica Ornsby, a D.C. attorney, provides a word of caution, “when it comes to vaccination cards, there is a fine line small businesses should be careful not to cross." Private businesses can refuse service to anyone under the law but cannot discriminate based upon what are considered "protected" classes. Race and gender fall into that category.

“Vaccination status is not one of the protected classes currently recognized under the law, but that could change in the future," says Ornsby. In addition, according to Weinthal, small businesses may have to provide accommodations to those customers who refuse vaccinations because of a religious objection or if there is an underlying medical condition that prevents them from receiving the vaccine.

“Vaccination status may also be closely linked to certain protected classes such as disability. In that case, someone might make a convincing case that refusing access to a business or company is unlawful," says Ornsby.

What rights do small business owners have to turn people away?

As a general rule, Casaceli emphasizes that "small business owners may turn people away who are not wearing masks." Many states around the country require individuals to wear masks or face coverings when in public, and challenges to that mandate have generally failed.

What liability issues should be of concern?

Small businesses can do their due diligence and be aware of the liability issues in terms of enforcing certain policies. “A policy requiring customers to wear masks should be uniformly enforced in a nondiscriminatory manner. In addition, the policy should be clearly visible to customers entering the premises," says Casaceli.

He cautions, however, that businesses must keep in mind there may be times when a customer's medical condition prevents him or her from wearing a mask. “In that circumstance, the business may be required to accommodate the customer to ensure equal access to the business's goods and services."

Since vaccination cards might not all contain the same information, small businesses might face limitations and confusion on double-checking data, and it could possibly create opportunities for fraud.

Weinthal recommends small businesses look to the EEOC and CDC for guidelines, as well as executive orders in a particular state. He also encourages other small businesses to reach out to attorneys in a particular area to determine what might be litigated in the future. “Ultimately, it isn't worth it for a small business to be a trendsetter, but to watch what other businesses do."