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April 6, 2021

Assessing Whether You Can (or Should) Ask Customers to See Their Vaccine Cards

by Brit Morse @britnmorse

As more Americans get vaccinated against Covid-19, you may be wondering if it's safe to return to work and whether you can freely cater to customers in person. One way to ease this return is to require that both your customers and employees get vaccinated. But tread lightly, as requiring a vaccine--or even proof of one--can be a minefield for businesses.

In most cases, you can require employees get vaccinated, as it's your responsibility to provide a safe workplace. You'll need to make accommodations for employees who don't get a vaccine due to a particular disability or sincerely-held religious objection, per the Americans With Disabilities Act, a law aimed at protecting vulnerable Americans from discrimination and unfair or uneven treatment from businesses and other institutions.

The question becomes murkier when it comes to customers. In most states, there's legally nothing stopping you from requesting to see a customer's vaccine card, says Carrie Hoffman, a partner and employment lawyer at the Dallas-based law firm Foley & Lardner. On April 2, Florida's Governor Ron DeSantis signed an executive order, banning state and local government agencies and businesses from requiring so-called vaccine passports, or documentation proving that an individual has been vaccinated against Covid-19.

But everywhere else, checking customers' vaccine cards is up to the employer's discretion, says Hoffman. If people refuse to present vaccine documentation, you don't have to serve them. Of course, denying someone entry or service for noncompliance could result in legal action from said individual, as ADA guidelines extend to customers, as well as employees. In other words, you will need to provide reasonable accommodation for the disabled or customers whose religion precludes them from getting vaccinated.

Verifying that someone has a religious exemption or a disability on the spot may be too difficult to do in a concerted way. What else is difficult? Verifying that customers actually received the required vaccine doses.

Wedding planners are running into this now, says Katherine Frost, CEO and founder of ORO, an all-in-one event planning software company based in Boston. As events start to come back, Frost says couples are leaning on the small vendors they work with to check vaccine cards of the venue staff and the guest list.

Venues may ask on-site staff to submit vaccine cards. On the guest-list side, couples and their event planner may request to see vaccine cards, or a negative Covid-19 test result, prior to the big day. As invites go out, attendees may start seeing specific wording around this requirement, and along with their RSVP, they may need to submit proof they're covered.

These safety precautions often come with added "Covid fees," notes Frost. There's the cost of covering staff needing to take time off to get the vaccine or get tested. They may also need to pay workers to provide on-site temperature checks. Frost also points out that this process may also look different in every state based on its vaccine distribution, local guidelines, for indoor versus outdoor gatherings, and the local mask mandates.

And even if you do take the step of setting up a vaccination-check point at the entrance of your business or event, there's no real way to police vaccine cards. They're not like driver's licenses that are difficult to fake, says Hoffman. Check Point Research, a San Carlos, California-based provider of cyber security solutions to government and corporate enterprises, reports that forged vaccine cards are easily procured online via the dark web. Users simply send in their details, and for as little as $200 they'll receive an official-looking vaccination card.

What's more, the cards themselves may not all contain the same information--raising the potential for confusion. Judi Korzec, founder and CEO of VaxAtlas, a vaccine management company that works with a network of 60,000 pharmacy providers to collect data on vaccinations, notes that many of the paper vaccination cards received at the vaccination sites have missing data and/or do not clearly state where you can find the complete record. "These records will be difficult to find and could lead to fraud as people seek to 'prove' their vaccination status," she says.

Vaccine passports, tech-based proof that you've been vaccinated against Covid-19, may offer more security for businesses interested in the technology but they've yet to be widely adopted by the public.

Some business owners like Natasha Miller, founder of Entire Productions, a corporate event planning company in San Francisco, see the issue of providing vaccine proof as a matter of personal responsibility--and that pandemic procedures should remain in effect for most businesses. "I think it should be up to the customer as to whether or not they present a card as proof." But even then she says it's not a cure all. With or without a vaccine card, she says, people can still get sick.

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