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Can You Require Employees And Customers Be Vaccinated Against COVID-19?


You may be hearing in the news about many states, including Florida, prohibiting the use of what is known as “vaccine passports.” These are really just proof of vaccinations. As things get back to normal, and people get vaccinated, many businesses are re-opening or returning to full operations, with the requirement that customers or employees be fully vaccinated. But is this legal?

Executive Order and Vaccine Passports

In April 2021, the Governor signed an Executive Order, restricting the use of Vaccine Passports. The law, which applies to both for and non-profit businesses, says that “patrons or customers” cannot be required to show proof of vaccination by businesses. Doctors and other health care providers are exempt, and can still require proof of vaccinations.

Additionally, although not “customers,” schools cannot require students to show proof of vaccinations.

Employees and Vaccines

The law isn’t as broad as you may think, as it does not prohibit a business from requiring that its own employees show proof of vaccination before continuing to, or returning to work. In fact, the Equal Employment Opportunity Commission recently said that employers can ask for proof of vaccination (although OSHA has warned employers that they should not treat vaccinated and unvaccinated staff differently).

Businesses can continue to use other methods of screening, such as temperature checks, the way that they did before the development and distribution of the vaccine.

Many employers may find themselves in a bind, when it comes to employees. On the one hand, they are free to require vaccines. If they do not, and an employee gets sick, Florida’s workers’ compensation laws generally protect employers from liability should a sick worker try to sue, and blame the company for contracting the disease.

But on the other hand, OSHA requires that a workplace be free from danger and hazards, including those posed by COVID-19. An employer’s failure to check vaccine status, and certainly the failure to require masks, or check temperatures, could be seen as a violation of OSHA protocols.

Other Federal Laws

Florida is an at will employment state, and an employer can, as it stands now, refuse to retain or hire or keep as an employee, anybody who refuses to get the COVID-19 vaccine. However, employers should also be mindful of the Americans With Disabilities Act (ADA).

Should an employee not be able to get vaccinated because of some underlying health condition, any negative consequence taken against that employee could be seen as an ADA violation. The ADA limits what an employer can ask an employee about his or her health status, so be wary of asking for full details about an employee’s medical condition.

The same applies to those employees who may have genuine religious objections to getting the vaccine.

Navigating the waters of COVID-19 safety, and employment laws, can be tricky. Make sure you have qualified legal help at your side. Call the West Palm Beach employment lawyers at Pike & Lustig for help today.



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