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US businesses 'on fairly strong legal ground' to mandate vaccine proof for customers: Law professor

Don’t be surprised if private businesses like event venues close their doors to those who cannot provide a “vaccine passport” or proof they’ve been inoculated from COVID-19, University of Pennsylvania law professor Eric Feldman told Yahoo Finance Live on Thursday.

“Private businesses can put all sorts of restrictions on who they do and don't let into their venues, and that would be true for your local bar and cafe, as well as Yankee Stadium,” Feldman said.

He added, "My guess is, in most cases, private businesses and public venues depending on which ones they are would be on fairly strong legal ground if they're going to require to show that people have been vaccinated."

New York became the first state in the country to adopt a voluntary credentialing system for theaters, stadiums, and other businesses. On March 26, Gov. Andrew Cuomo rolled out a pilot program developed in partnership with IBM (IBM) called the “Excelsior Pass," which allows people to upload recent COVID-19 negative test results or vaccine status and in exchange receive a mobile or printable QR code.

A medical worker holds Pfizer coronavirus disease (COVID-19) vaccination cards at a mobile vaccination drive for essential food processing workers at Rose & Shore, Inc., in Vernon, Los Angeles, California, U.S., March 17, 2021. REUTERS/Lucy Nicholson
A medical worker holds Pfizer coronavirus disease (COVID-19) vaccination cards at a mobile vaccination drive for essential food processing workers at Rose & Shore, Inc., in Vernon, Los Angeles, California, U.S., March 17, 2021. REUTERS/Lucy Nicholson (Lucy Nicholson / reuters)

According to Cuomo, the pass is intended to help major stadium venues comply with a mandate to ensure that staff and spectators receive a negative COVID-19 PCR test within 72 hours of an event.

“It's not without problems,” Feldman said. “I think we know already, people are falsifying information about having been vaccinated. And there's also not the appropriate uniformity that we need in terms of the vaccine passports...there's different companies and different agencies issuing them, and that creates some complications.”

Current EEOC guidelines for employees

The issue of proof of vaccination could come up for employees, as well as patrons of public and private establishments.

Under the Equal Employment Opportunity Commission (EEOC) guidance, employers can mandate that their employees get vaccinated or take certain precautions such as wearing a mask. However, federal law says exceptions must be made for employees who request an accommodation based on a sincerely held religious belief, underlying medical condition, or disability.

Feldman went on to say that he sees the now popularized term “vaccine passport” as a misnomer to describe a system designed for individuals to show vaccination proof.

“I think the term started out describing the sorts of requirements that countries might have for citizens of other countries, or even their own citizens to cross the borders into the country,” he said. “That fits with what we think of as passports, which after all are formal government documents that impose certain obligations and grant certain rights to the holder.”

Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney.

Follow Alexis Keenan on Twitter @alexiskweed.

Read more:

White House won’t support ‘vaccine passports’: Psaki

Employer perks for COVID-19 vaccinated workers could draw legal challenges

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