As state and federal governments lift mandatory safety measures following CDC guidance, businesses have begun cautiously reducing their protocols for the first time for both their employees and customers. National retailers like Trader Joe’s, Costco, Walmart, Target, and Starbucks have announced that vaccinated customers do not have to wear masks, and many have dropped the requirement for vaccinated employees. Trader Joe’s employees still are required to wear masks. As of now, none of these retailers are requiring proof of vaccination status prior to entry, but are operating on an honor system, requiring unvaccinated individuals to be responsible and wear a mask while in their stores.
The CDC guidance states that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.” However, this guidance only applies to those who are vaccinated.
As businesses consider what their own policies will entail, being armed with industry practice and current guidelines can equip them with the knowledge to move forward with what best suits the needs of their employees and customers. These considerations can help protect businesses navigate these unchartered waters.
Understand Requirements From Specific State Legislation or Local Ordinances
Each business’s policy may be subject to certain state or local ordinances. Currently, there are many pieces of proposed legislation that prohibit businesses from asking about vaccination status or require verification of it. Some states, like Connecticut and Colorado, have even proposed statutory permissions for citizens to take legal action against employers that take adverse action against employees who decline vaccinations. If statutes containing this provision are enacted, legal action could become a popular choice of slighted employees and customers.
Provide Clear Communication
As businesses adjust policies, it's important to provide clear notices at the entrances of their stores that outlines the requirements to enter. If an employee or customer refuses to wear a mask, businesses have a right to ask them to leave, unless an exception applies. Since many employees and customers still remain concerned with being exposed to COVID-19 while working or visiting a business, it's important that businesses continue to demonstrate that they're taking the safety of their employees and customers seriously and effectively communicate adjustments in policies.
Determine if You Will Require Proof of Vaccination
Vaccination status isn't protected by HIPAA as it's not considered protected medical information. As it stands, businesses are free to require whatever kind of proof of vaccination they choose. The processes of verification can be similar for both employees and customers. Providing the original vaccination card, a copy of the card, or a picture of the card will suffice to gain entry or employment. Another option is for employees and customers to sign an attestation form as to their vaccination status. Retailers should post warnings and notices at the entrances of their stores that clearly outline the requirements and guidelines for entry.
Some businesses may require their employees to get a vaccine as a condition of continuing to work, with exceptions that comply with federal and state laws like ADA and Title VII. Walmart, the nation’s largest retail chain, announced a bonus for associates who get vaccinated, but it's not requiring it as a condition to work there. Businesses can and should create a policy outlining their protocols and confirm that employees have received any updates to those policies as they're made. Businesses should also be clear on the potential consequences of a violation of the policy and apply those universally.
Celia Schnupp is an attorney at Perez and Morris, a women-owned business law firm.