Last week, the EEOC provided updated COVID-19 guidance to employers on vaccines and vaccine incentives in the employment realm. One area, however, in which the agencies has been silent is in the public accommodation space and what organizations can/must/should do to protect themselves and their employees from claims of violation of public accommodation laws should they choose to require vaccines.
As an example, if you as an employer are requiring your employees to be vaccinated, and those individuals are in a public-facing position and will have contact with the public, are you requiring that the individuals your organization does business with be vaccinated as well? If so, there are a host of different concerns and risks associated with such a policy, but lets focus on risks under public accommodation laws. Specifically, what happens if an individual is unvaccinated because of a health condition/disability or a religious belief?
Recall that Title III of the ADA (and many state fair employment practices acts) address the activities that public accommodations must take when dealing with anti-discrimination policies/practices. Under Title III, a public accommodation cannot discriminate against any individual based on disability “in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any places of public accommodation.”
The first question that pops to mind is, “Is my organization a public accommodation?” The short answer, provided by the EEOC, is “A public accommodation is a private entity that owns, operates, leases, or leases to, a place of public accommodation. Places of public accommodation include a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers. Private clubs and religious organizations are exempt from the ADA's title III requirements for public accommodations.” We could get more technical, but for blog purposes, this is a solid definition.
If your organization is a public accommodation, the only way an organization can limit an individual with a disability’s “full enjoyment” of services, would be if the individual “poses a direct threat to the health or safety of others that cannot be mitigated by appropriate modifications in the public accommodation’s policies or procedures, or by the provision of auxiliary aids.” Accordingly, if a client/customer is unvaccinated because of a disability, the organization would then need to work to provide the client with full and equal enjoyment of the service in another way, or risk a claim of violation of Title III. During the height of the pandemic, the ability to argue that an individual who was not wearing a mask posed “a direct threat to the health or safety of others” was easier to make and supported by science and the CDC. The current science from the CDC (as of the date of this post) would indicate that a fully vaccinated individual who is in contact with an unvaccinated individual would have a small likelihood of infection. Thus, it becomes harder to argue that an unvaccinated individual would pose a direct threat to the health and safety of vaccinated individuals. If they were to overcome that hurdle, the organization would still likely need to permit the individual to access/use the organization’s services, by providing an appropriate modification. In this situation, asking individuals to wear personal protective equipment would likely be appropriate.
Similarly, Title II of the Civil Rights Act provides that an individual is “entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation” without regard to religion. Many state fair employment practices statutes have similar requirements. The definition of a public accommodation is slightly different, but still has broad applicability. Another difference (between the ADA and the Civil Rights Act) is that there is no “direct threat” exception under the Civil Rights Act. Accordingly, if an individual’s choice to be unvaccinated is because of religious beliefs, an organization would not perform a direct threat analysis, but instead would jump to determining how to permit a customer/client to maintain “full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations.” The organization would then need to determine whether requiring personal protective equipment would provide the individual with equal enjoyment of the goods or services that are being provided. This will be a fact-intensive, situation-specific analysis with an outcome that is likely different depending on the industry and situation.