What HR needs to know about how to use vaccine passports legally

After a year of fear and uncertainty, rapid advancements in vaccine development have helped put minds across the country at ease. Gyms and theaters are slowly but safely reopening, restaurants are serving more patrons, and organizations are welcoming their workforces back with open arms. To make matters more optimistic, President Biden recently announced country-wide eligibility for adults for the COVID-19 vaccine, and the CDC relaxed its mask-wearing guidance for vaccinated individuals, freeing them from many mask requirements when outdoors. As (some) people across the U.S. flock to get vaccinated, employers are working to determine whether to monitor employee vaccination rates and how, if at all, vaccination status affects terms and conditions of employment. It’s a challenging line to walk for those working in human resources.

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Author Barbara Harris. © Matt Greenslade/photo-nyc.com

One of the stickier scenarios that HR departments face is the concept of a COVID passport. Simply put, these digital passports would work as a method to track any and all COVID-related metrics, from vaccination status to test results and more. According to Seyfarth Shaw LLC, COVID passports could be required to access certain activities or venues, such as travel, sporting events or indoor concerts or theaters. But from a business standpoint, while the intentions behind passports are good–protecting employees and customers alike–they may present more questions than answers. In addition, they can open employers up to potential liability for unlawful discrimination, privacy torts or violations under the National Labor Relations Act.

Related: Get the latest on employers and vaccines at the upcoming Health & Benefits Leadership Conference, May 11-13. Register here.

As the legal and scientific landscapes continue to evolve, and more organizations consider implementing vaccine passports or similar COVID-tracking programs, HR managers should keep several things top of mind to make the best decision for employees and to protect the employer’s best interest.

What rights do employers and employees have?

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From an employment law perspective, employers generally are within their rights to require their employees to get vaccinated and to implement a COVID passport program. However, several employee rights must be considered in doing so. For instance, if vaccines are necessary to enter the office, employers must make reasonable accommodations for those who are unable or unwilling to get a vaccine for a protected reason, such as disability or a sincerely held religious belief. Any corporate protocol or program must comply with anti-discrimination laws to ensure that–under federal and state, and sometimes local law–accommodations are provided to those entitled to them. Accommodation obligations could include exemptions from a mandatory vaccine or from a COVID passport program.

Next comes the question: How can a company tactfully handle those who are exempted? Consider a factory worker who must physically show up to do the job. Can organizations bar that person from the workplace and withhold a salary if they cannot or choose not to get vaccinated under a COVID passport program? This is something that most companies are still working through, as the government hasn’t provided any real answers in terms of policy just yet. The way an employer responds is dependent on the workplace (i.e., decisions could look different for an office worker who has been successfully working from home for over a year vs. an essential employee who cannot work remotely). HR must be aware of the legal minefields when approaching these scenarios and even more cautious about terminating the employment of staff for COVID and vaccine-related reasons, lest they find themselves in incredibly hot water. For on-the-job work like the factory scenario, the employer may need to engage in the interactive process to come up with a solution that both provides reasonable accommodation to the worker and protects others on site. Those could include additional social distancing measures, modified schedules, enhanced protective equipment, or some combination of those options.

Critical HR considerations

It’s important to understand where in the world your employees are working–literally. For example, while New York became the first state to launch a formal vaccine passport program, and states like Hawaii and Illinois are considering technology to make it happen, many states including Arizona, Idaho, Montana and Florida have issued orders banning the use of these passports by government and other entities. To that end, what if you’re a business operating out of New York but happen to have a handful of employees dispersed across states that prohibit the use of vaccine passports or similar programs? These are important points to consider to ensure compliance in all the places you operate.

Read more about vaccine incentives, policy and plans here.

Another concern, especially for those working to implement a hybrid model where vaccines are encouraged but not required, is unintentionally creating two distinct groups of employees–the vaccinated and the non-vaccinated. Naturally, as a company works to push and promote vaccination, certain career-advancing opportunities–client meetings, conferences, travel–might only be available to people on one side of the equation. HR needs to be extra diligent about providing equal opportunities to advance, regardless of an employee’s vaccination status and especially if employees are unvaccinated for a protected reason.

With employer mandates of any sort also comes the question of how to keep employee morale consistent and, ideally, on an upward swing. Fortunately, the last year of remote work has helped HR folks get creative about how to keep their people happy. But forcing the entire workforce into what could ultimately be a very personal choice is likely to ruffle some feathers. Much of this comes down to knowing your employees or at least being able to take an accurate temperature check. Are they likely to see a vaccine passport as an invasion of privacy, leading to potential resentment or even legal claims, or could they view it as their ticket back to freedom and some semblance of normalcy?

The topic of morale is not only critical for keeping current employees happy and comfortable but also important in recruiting efforts. Businesses instating passport programs must be totally transparent with people throughout the interview process, so they understand the details of what might be asked of them, should they choose to join this particular workforce.

Setting up for success

It’s helpful to approach a passport program holistically, starting with an understanding of what, precisely, the business is hoping to accomplish before getting any procedures off the ground. Are you aiming to achieve herd immunity across your workforce? Do you hope to vaccinate your entire employee base to ensure the safety of customers who enter your establishment? And, most importantly, is the passport program the straightest path to achieving these goals, or are there other approaches that offer similar benefits with fewer risks? This could be a combination of voluntary policies and other types of protection measures, such as continuing social distancing and face mask mandates.

Related: Still weighing vaccine incentives? Here’s what 12 employers are doing

Once the overall goals are established, employers should consider the question of practical application. Do passports live on individual’s phones and devices? Is there a high-tech solution that needs to be deployed to account for scans and tests or to house private health-related data? And does your company have the budget and personnel necessary to make it happen? New York State’s Excelsior Pass, for example, provides users with a free and voluntary digital platform to confirm recent negative test results as well as proof of vaccination, making the implementation as easy as accessing a mobile boarding pass.

At the end of the day, many business leaders are thrilled at the prospect of safely opening their doors and welcoming their workforce back inside. For those considering vaccine passports, or related vaccine mandates and policies, HR should approach each potential scenario with their employees in mind. It’s critical to ensure that everyone’s unique needs are contemplated and their rights respected in order to carefully–and legally!–safeguard the business, its employees, and those that it serves.

Barbara Harris
Barbara Harris is Senior Legal Editor, Labor & Employment, Thomson Reuters Practical Law.