Can the Private Sector Prefer Vaccinated Consumers or Exclude the Unvaccinated?
- The private sector in the United States has begun asking whether it is lawful to prefer consumers who have received the COVID-19 vaccine over the unvaccinated or to exclude unvaccinated consumers altogether. Preferences under consideration include access to goods and services not available to others, or expedited or priority access to generally available goods and services.
- Proliferating lawsuits allege that businesses have a duty to keep consumers safe from COVID-19. If the duty exists, then many in the private sector believe they must have a commensurate right to impose vaccination preferences and mandates on consumers.
- This Holland & Knight alert provides an overview of related issues concerning public accommodation under the Americans with Disabilities Act, potential constitutional and contractual limitations, and other key considerations for businesses in the private sector.
The private sector in the United States has begun asking whether it is lawful to prefer consumers who have received the COVID-19 vaccine over the unvaccinated or to exclude unvaccinated consumers altogether. Consumers include customers, clients, patrons, students and a host of others who purchase goods and services in the marketplace. Preferences under consideration include, for example, access to goods and services not available to others, or expedited or priority access to generally available goods and services. Students who otherwise might have to participate online may gain in-person access to classes, and vaccinated sports fans could be admitted to stadiums for games.
Driving the inquiry is the private sector's desire to reopen fully and return as soon as feasible to pre-pandemic delivery models for goods and services, besides protecting the health and safety of employees, consumers and the public. Proliferating lawsuits allege that businesses have a duty to keep consumers safe from COVID-19. If the duty exists, then many in the private sector believe they must have a commensurate right to impose vaccination preferences and mandates on consumers.
Public Accommodation and the ADA
Some consumers will welcome vaccination preferences and mandates because they are looking for the added assurance that they entail, but others will have disabilities that make compliance difficult or impossible. The Americans with Disabilities Act (ADA) protects disabled consumers just as it does employees, although under different titles. Still other consumers will have strong philosophical, religious, political or other objections. "None of their business," they will say. This is a marketing concern that businesses should consider carefully, but it may not be sufficient to state a legal claim against a private vaccination preference or mandate.
The private sector commonly owns, leases or operates places of public accommodation frequented by consumers. Title III of the ADA protects access to these places by those with a "disability," meaning with respect to individuals, "a physical or mental impairment that substantially limits one or more major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment … ."1 Title III does not apply to non-physical providers of goods and services, although this would change if the Equality Act was enacted.2
Persons with COVID-19 may or may not qualify as "disabled." More commonly, disputes may arise with consumers who, because of a disability, insist they cannot be vaccinated. To make a claim under Title III of the ADA, a consumer who is disabled must also show that the owner, lessor or operator of a place of public accommodation 1) employed a discriminatory policy or practice, and 2) discriminated against the plaintiff based upon the plaintiff's disability by failing to make a requested reasonable modification that was necessary to accommodate the disability.3
The requirement that a public accommodation be reasonably modified for disabled individuals requires an individualized inquiry to determine whether the modification would be reasonable under the circumstances as well as necessary for that person, and yet at the same time not work a fundamental alteration.4 This will make it challenging to prevent all consumers who are not vaccinated from purchasing goods or services. The plaintiff bears the burden of proving the reasonableness and necessity of any modifications to a vaccination mandate.5 If the plaintiff satisfies this burden, the burden shifts to the defendant to argue that the modification demanded would cause a "fundamental alteration."6
A "fundamental alteration" is a "modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages or accommodations offered." 7 In effect, it changes the rules of the game. For example, there would be a fundamental alteration if 1) an alteration affecting an essential aspect of the public accommodation's policies or programs would be unacceptable even if applied to everyone equally, or 2) even a minor change would give an individual with a disability an advantage over others.8 There is no case law applying these principles to a vaccination preference or mandate. This will require a case-by-case evaluation.
An affirmative defense arises for the owner of a place of public accommodation when the plaintiff poses a "direct threat" to the health or safety of others. A direct threat is "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." 9 This also requires an individualized assessment based on reasonable judgment reliant on current medical knowledge or the best available objective evidence.10 But, according to the Centers for Disease Control and Prevention (CDC), "[a]nyone can have severe illness from COVID-19, especially older adults and people of any age with underlying conditions." 11
The analytical quandary that experts will soon address is whether allowing all but a few consumers to comply with a vaccination preference or mandate at a place of public accommodation constitutes a fundamental alteration or direct threat. Modifications and alternatives might include a negative COVID-19 test, negative screening exam, mask wearing, social distancing or the like. At some point when enough are vaccinated and others have antibodies, any direct threat posed by the unvaccinated to the health of others may be less substantial. Experts will opine on this in light of variables such as new coronavirus strains, vaccine effectiveness, vulnerable persons and the unique situation at a specific place of public accommodation. Some places of public accommodation may be more risky than others.
Additional Considerations and Limitations
Although the linkage is less direct for vaccination preferences, requiring consumers to be vaccinated but not every employee may be difficult as the allowance for one group may indicate that a modification for the other group is feasible. Concern about mandatory vaccination for employees now centers around the emergency use authorization for the vaccines. The legal community awaits comment from the Biden Administration or courts on whether employees must have a choice.
Meanwhile, some in the private sector are pressing the government to require or endorse vaccine preferences or mandates. For example, the U.S. Chamber of Commerce, airline trade organizations and airline labor unions sent a letter to the Biden Administration asking for public standards for traveling as COVID-19 passports emerge overseas.12 Israel is making leisure activities accessible only to people who are fully vaccinated or recovered under a "Green Badge" system.13
These are public actions to which constitutional limitations attach in the United States. Constitutional rights are at issue not only if government compels the private sector to enforce vaccine mandates or preferences, but also if government or quasi-government organizations impose them directly. Constitutional rights are not necessarily at issue when the private sector unilaterally imposes preferences or mandates.
Instead, the private sector should be on the lookout for contractual and quasi-contractual limitations on its ability to impose preferences and mandates, promissory estoppel, the risk of deceptive and false advertising claims, and other common-law claims that could arise out of agreements and understandings into which businesses have entered. Furthermore, most states have a public accommodation law similar or more protective than the federal law. Within the federal law are rules and regulations specific to some industries that also require parsing. Members of the private sector are advised to consult counsel about this.
Subject to these caveats, the bottom line for many in the private sector that operate places of public accommodation is that, as long as public guidance about the risks incident to exposure to the unvaccinated remains unchanged, they may prefer or mandate vaccinations for consumers, subject to the limitations summarized above requiring allowances for consumers with disabilities and subject to contractual and other limitations. As the direct threat associated with COVID-19 dissipates, so will the argument for vaccination preferences and mandates for consumers.
1 42 U.S.C. § 12102(1).
2 H.R. 5, 117th Cong. § 3 (2021) (adding § 208).
3 See PGA Tour, Inc. v. Martin, 532 U.S. at 683 n.38; Dudley v. Hannaford Bros. Co., 333 F. 3d 299, 307 (1st Cir. 2003); Amir v. St. Louis Univ., 184 F. 3d 1017, 1027 (8th Cir. 1999); Fortyune v. American Multi-Cinema, Inc., 364 F. 3d 1075, 1082 (9th Cir. 2004).
4 Kapche v. City of San Antonio, 304 F. 3d 493, 498-99 (5th Cir. 2002) (citing Martin, 532 U.S. at 688).
5 Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1106 (D. Colo. 2000).
6 42 U.S.C. § 12182(b)(2)(A)(ii).
7 U.S. Department of Justice, ADA Title III Technical Assistance Manual § III-4.3600.
8 Martin, 532 U.S. at 682-83.
9 49 C.F.R. § 39.3.
10 Montalvo v. Radcliffe, 167 F. 3d 873, 876-77 (4th Cir. 1999), cert. denied, 528 U.S. 813 (1999).
11 CDC, Coronavirus Disease 2019 (COVID-19), Key Facts (last visited on March 26, 2021).
12 Mary Schlangenstein, "Airlines and Travel Groups Urge U.S. to Develop Virus Passport," Bloomberg (March 8, 2021).
13 Natasha Frost, "Israel's Moral Quandary Over Vaccinations," The New York Times (Feb. 18, 2021).
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