As some states legislate a ban on vaccine mandates within their borders, event planners who want to institute vaccine mandates as a requirement to attend their events in those states are not sure if they can legally do so. Other states have put rules on the books requiring some sort of vaccine passport be used for group gatherings in certain venues.
So what’s a planner to do if the event organizer wants to require all attendees to provide proof that they are fully vaccinated, but they are meeting in a destination where the state law prohibits vaccine mandates? Or if their attendees are resistant to vaccine mandates and yet they must require proof of vaccination to meet at their designated facility in their host state?
The question is far from academic these days, though you may feel like you need a law degree to wade through all the various rules. “It is legislated on a state-by-state basis, and every state is a bit different,” says John Foster, Esq., Senior Partner, Jensen & Gulley Attorneys and Counselors at Law. State vaccine mandate bans are now in place in 20 states, instituted either by executive order or state legislation. Another five states have instituted laws or enacted orders that either facilitate the creation of digital vaccination status applications or exempt fully vaccinated individuals from some COVID-19 restrictions if they can provide proof of vaccination.
Most of the states that have instituted vaccine mandate-friendly laws have leaned toward providing voluntary ways to make it easier for people to verify their vaccine status to gain access to vaccinated-only venues, such as the California Department of Public Health and Technology’s Digital COVID-19 Vaccine Record Portal or New York’s voluntary Excelsior Pass app. Others, such as Oregon, have issued a guidance that allows businesses to verify customer vaccine status to allow vaccinated customers to go maskless indoors. As of this writing, only Washington State has instituted a rule that requires events with certain attendee thresholds to verify attendees are either fully vaccinated or have tested negative for COVID-19 within 72 hours of an event, though cities and regions may have their own rules that are stricter than state guidelines.
The laws in states that have gone the other direction and now have some type of vaccine mandate ban also vary widely. As to whether they will affect an event organizer’s ability to require all who come to their meeting or event to provide proof of vaccination, well, that depends on the particular laws that state has enacted. “You need to ask your attorney to contact the appropriate state officials to determine if the law in the state where the meeting is to be held applies only to employee/employer relations or extends vaccine mandate rules to volunteers, contractors, customers and possibly meeting attendees,” says Foster.
For example, some states, such as Arizona, only prohibit state and local governments and agencies that receive public funding from requiring proof of vaccination for employment. Other states extend that prohibition to private employers, but again the statutes are mainly aimed at preventing people from being terminated or not hired because of their vaccination status — not at the customer (or attendee) level. So “It would be perfectly lawful for me as an event organizer to schedule an event in Scottsdale and to condition attendance upon attendees showing proof of vaccination, including boosters,” says event safety expert Steve Adelman, head of Adelman Law Group, PLLC and Vice President of the Event Safety Alliance.
“However, if you’re talking about Florida, Texas, South Carolina and a small number of other states, forget what I just said. You can request people to volunteer that information, but you can’t enforce it.”
Exceptions to the Rule
While the laws in most states that have instituted some variety of vaccine mandate ban focus on state government hiring and retention practices and so for the most part aren’t relevant to meeting organizers, some states, popular meeting destinations such as Florida among them, have issued orders prohibiting private businesses from requiring customers to prove their vaccine status.
Event organizers are keeping a watchful eye as a lawsuit by Norwegian wends its way through the system — the cruise line is suing the state of Florida over its vaccine mandate ban, which would not allow the ships in ports in that state to require their crews and passengers to prove their full vaccination status. It won a preliminary injunction in August, allowing the cruise line to continue to require vaccine mandates for boarding. In a cautionary note, even though cruise ships for the most part do have stringent vaccine, masking and other pandemic-related requirements, the Omicron variant still is managing to sneak aboard. The Centers for Disease Control and Prevention (CDC) currently is monitoring 88 vessels.
However, even some of the states with the strictest anti-vaccine-mandate laws may have loopholes. For example, you may be able to institute a vaccine mandate at a meeting in those states as long as you provide an opt-out for those who meet certain criteria, such as religious or medical exemptions, if that state allows mandates with exemptions, says Foster.
3 Ways to Make Informed Decisions
Adelman says event organizers need to consider the following when making choices about vaccine mandates and site selection for upcoming events during the pandemic:
- If having a vaccine mandate is important to your organization’s due diligence process when it comes to attendees, sponsor, exhibitor and staff health and safety, do your research before you book, says Adelman. “The first consideration is to determine whether a state has any restrictions on the ability of private entities to require either vaccination status or masking as a condition of participation.”
- If the state in which you wish to hold the event does have restrictions on vaccination requirements, you will have to decide if the importance of holding the event in that locale is enough to override the event organizer’s risk management policies in this area.
- If being in a particular geographic location is the overriding factor for the event organizer and the people for whom they are creating the event are on board with not having a requirement that their fellow attendees, exhibitors and others at the event are fully vaccinated, event organizers still can “model good behavior,” says Adelman. He suggests putting links to authorative science-based information on COVID transmission, including measures to protect yourself and others, on the event website.While several states do have mask mandate bans, they mainly apply to government entities and school, not most meeting and event venues. According to Adelman, it is not illegal in any state for event organizers to require masking, social distancing and holding events in areas where there is a high volume of air movement, such as outdoors or in well-ventilated indoor spaces, so event organizers can still take these steps so attendees will understand that “you are taking health and safety during the pandemic seriously.” He adds that it is a good idea to ask those who are not willing to mask while in the conference space or adhere to other of the event organizers’ precautions to participate in the event digitally rather than in person.
“The end game for everyone who is organizing events is to make sure there is a way for everyone to participate, either in person or virtually if they are unwilling or unable to follow the organizer’s health and safety protocols or are immunocompromised or have other reasons they can’t participate in person due to the risk of infection,” says Adelman. “Retailers such as Nordstrom’s and Walmart figured this out more than a year ago,” he says. “Some stores now have signs that welcome customers to shop online if they are not willing or able to follow the store’s pandemic masking rules, for example.”
Vendor Vaccine Mandate Management
Event organizers do have another workaround in their toolkit for meetings scheduled in states that have vaccine mandate laws in place, says Adelman. Because every state except Montana is an at-will state — meaning an employer can terminate an employee for almost any reason other than one covered by anti-discrimination laws — event organizers can require all vendors working their meeting to present proof of vaccination as a contractual condition of getting the job, he says. Organizers also can require vendor staff to wear face coverings as a condition of employment. “That’s a pretty big win,” he says.
However, if you think a force majeure clause will get you out of a tough situation, think again, he says. These are not going to be useful at this point in the pandemic, unless government enacts shutdowns that make it impossible to hold an event, as happened earlier in the pandemic. “A far more useful provision now is the termination clause.” If you are negotiating now, think about how you can work pandemic-era challenges into the reasons why you can terminate a contract without severe consequences for either party.
If you signed the contract pre-pandemic, you still may be out of luck. However, this is where those relationships that are so often touted as vital to the meetings industry come into play. “You may have to eat some cash, but hotels know that they could lose you as a client forever, and they don’t want to do that. They have incentive to work with you to find a solution,” says Adelman.
“These are difficult times, and in difficult circumstances, creative people like those in this industry will think creatively and problem-solve outside of the box,” says Adelman. “Even when some avenues are closed, that doesn’t mean we are without options that will enable us to host an event that is not a super-spreader.”