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Can businesses require COVID-19 vaccination proof?

Steve Kirschbaum, director of catering at Lessing's Hospitality

Steve Kirschbaum, director of catering at Lessing's Hospitality Group, talks to Newsday about current state requirements on testing and vaccination proof for catered events.  Credit: Johnny Milano

New York State currently requires people who attend certain large gatherings at commercial venues, such as a wedding reception at a catering hall, to show proof of a negative COVID test or completed vaccination. But for the most part, customers aren’t required to show vaccination proof to get into businesses.

At some point, however, businesses may have to decide whether they want to require vaccination proof from customers. And legal experts say it appears to be within their right to ask for proof, but they’d have to navigate a fine line.

Policy should be applied ‘fairly’

"It’s most likely lawful that businesses can require proof of vaccination as a condition of service," says Lawrence Gostin, a Georgetown University law professor specializing in public health law.

The U.S. Equal Employment Opportunity Commission has said employers may ask employees for proof of vaccination, but has not offered guidance for businesses asking customers, Gostin says. Even before COVID, you’d see signs at businesses like "no shirt, no shoes, no service," he says.

By extension, he says, a business should be able to require proof of vaccination as long as that policy is applied "fairly and equally without discrimination."

"The U.S. is on track to soon be able to offer a vaccine to anyone who wants one. Until then, you don’t want to leave anyone behind," Gostin says.

Navigating legal issues

There are legal issues to navigate, though.

Gregory Reilly, a litigator and trial attorney at Bond, Schoeneck & King in Garden City, says while it should be within businesses’ right to ask for vaccination proof, there are potential legal issues regarding how they do it.

For instance, "disparate treatment" claims could arise in an instance where a business is accused of requiring proof of vaccination from one race or ethnic group and not another, Reilly says. Also, "disparate impact" claims can arise when a policy that appears neutral has an ancillary discriminatory effect, such as if requiring vaccination proof for entry might negatively impact a protected group that has a low vaccination rate.

Also consider, says Reilly, some people have religious or medical considerations, and those people may require accommodations.

Gray areas to consider

Still it’s a gray area, although there are some current state guidelines for certain industries.

For instance, catering facilities are allowed up to 150 guests for indoor events but for gatherings of 100 or less a negative COVID test or vaccination proof isn’t required, says Steve Kirschbaum, director of catering for Lessing’s Hospitality Group, which operates 15 catering venues on Long Island.

But as per state guidelines, for indoor events with 101 people or more, on the day of the event, the venue must collect a copy of a negative PCR COVID test taken within 72 hours of the start time of the event; or a rapid test taken within six hours of the start time; or vaccine proof that a guest’s last vaccination dose was at least 14 days prior to the event, he says.

Outdoor events have different requirements regarding testing and vaccination proof.

For convenience, Kirschbaum says its venues have arrangements with nearby testing sites that guests can get tested at no cost to the client or guest.

As state restrictions continue to get lifted, Lessing’s doesn’t foresee asking customers for vaccination proof in the future unless mandated, says Kirschbaum, noting they’ll continue to adhere to all required safety measures.

Sosh Andriano, owner of The Whales Tale, Harbor Head Brewing Co. and Lota Veco, all in Northport, says he’s adhering to all state safety requirements, but it’s still too early in the vaccination process, so he hasn’t taken a position yet on whether he’d ask for vaccination proof at his eateries.

But with the Whales Tale being the company’s prime economic driver and its seating largely outside, he says he feels "a bit more comfortable to wait and see how this plays out."

‘Navigating uncharted territory’

Michal Ovadia, an attorney in Nixon Peabody’s health care practice in Jericho, says, "we’re navigating uncharted territory here."

It’s possible businesses can request it, but there are serious considerations, Ovadia says, including that many businesses have lost significant revenue during lockdown last year.

"Ultimately, a business could be turning away customers that aren’t able to verify their vaccination status" or choose not to be vaccinated, she says. On the other hand, there may be restaurant patrons, for example, who feel safer eating at an establishment that requires vaccination proof.

There are also equity issues given that certain populations haven’t been able to receive the vaccine yet.

"There are so many unknowns," Ovadia notes. "You’re always going to have that first plaintiff that tries to test the waters."

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Fast Fact:

In a Consumer Reports survey of 2,000-plus U.S. adults in December, some activities that respondents said should require proof of vaccination include going in person to a doctor’s office or other medical facility (20%); attending an amusement park (22%); traveling on public transportation (24%); and attending large arena events (27%).

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