As the Covid-19 vaccination program rolls out over the course of 2021, meeting planners might be considering vaccination requirements for their in-person attendees. Is that legal?
We asked attorney Joshua Grimes of Grimes Law Offices, LLC, a specialist in the meetings and convention industry, to weigh in on the issue. From a legal standpoint, according to Grimes, asking for proof of a Covid vaccination or for a negative Covid test to participate in an in-person event is allowed and justifiable. But, he says, it does raise questions and issues that planners need to consider.
Is a Jab Confidential?
“Some people will say ‘HIPAA doesn’t let us require it,’” says Grimes. He rejects that idea—the federal law protects sensitive patient health information from being disclosed without the patient's consent, but “doesn’t say that you can't ask someone to show proof of that they've gotten a vaccine.” However, data-privacy regulation can come into play, he says. “If you're organization is going to require proof, it could raise GDPR [General Data Protection Regulation] issues because health information is considered personal data. So, if you're going to require proof, it needs to be protected along with other personal data that you're collecting about attendees. And there should be a disclosure that you're collecting health information, and how you're going to use it, as part of your privacy policy.
Policing the Proof
For organizations that want to mandate proof of vaccination or a negative Covid test, the next issue is, “What proof do we ask for?” Vaccination centers currently provide patients with a receipt, but Grimes is skeptical. “Those cards vary depending on who gave out the vaccine. There's no standard. And I suspect they're easily duplicated,” he says. “That's a big issue because for someone who doesn't want to get the shot, it will be easy for them to get a fake document, and then event organizers will have to determine what they will accept.” This hurdle could be overcome if the Vaccination Credential Initiative that was announced in mid-January is successful. The VCI is a coalition of health and technology organizations working on a digital Covid-19 vaccination passport that will allow businesses, airlines, and countries to check if people have received the vaccine. A related initiative by The Commons Project is currently testing CommonPass, a secure digital document, to verify if a Covid PCR test or vaccination is valid as travelers move across borders.
Reasonable Accommodations
Another thing to consider is that, in some situations, a vaccination mandate could be a violation of the Americans with Disabilities Act, Grimes says. If somebody has a severe allergy and doesn’t get the vaccine because of it, planners need to make a reasonable accommodation for that attendee. Also, a vaccine requirement could have religious-discrimination implications. If someone says that their religion prohibits them from getting the shot, then the planner should ask questions about that attendee’s ability to participate in other ways. “It’s up to the meeting host to decide what the reasonable accommodation is going to be; it's not up to the attendee,” Grimes says. Planners might have a virtual-meeting option as an accommodation, Grimes notes, or break out a section of the in-person meeting space for those without proof of vaccination or a negative Covid test. Hosts could also require face shields to be worn in addition to masks in those segregated areas.
Tell Them, and Tell Them Again
Meeting hosts who decide to require vaccinations or negative Covid tests have to thoroughly communicate that decision and all its implications. “If a meeting host is going to require proof, they should notify attendees well in advance of the event.” On the website, registration materials, and all communications with potential attendees, explain what’s required to fully participate (vaccination or negative test), what will be accepted as proof, and what options you have for those who can’t adhere to the new standards.
The Covid-Waiver Question
“Releases may have limited effectiveness, but they're a good idea right now,” Grimes says. “Whether you require the vaccine or not, you should ask attendees to sign a release against the chance of developing Covid, as well as agreeing to wear a mask, social distance, and participate in contact tracing if necessary. Waivers are not always upheld in court, but they're helpful nonetheless because they make attendees think about the steps they should take to protect themselves from illness, and about assumption of risk.” (Read Grimes’ thoughts on six ways to make a Covid waiver enforceable.)
Attendees will become more comfortable with proving proof as they begin to see it in other areas, such as the workplace or travel providers. “If the airlines require proof, I think we're likely to see the same requirements elsewhere,” says Grimes. “I think some of the big meetings, the airlines, and maybe some hotel companies will start thinking about this.” And their decisions, he says, could help set a new norm for the industry.
