Labor and Industries adds more vaccine passport restrictions to businesses

May 26, 2021

During an Association of Washington Business Webinar on Tuesday, Craig Blackwood, the Deputy Assistant Director of Labor and industry (L&I) provided some additional guidance on the L&I vaccine passport rules for businesses operating without social distancing and masks.

The guidance includes;

  • L&I clarified that that a verbal attestation of vaccination by an employee to an employer is a ‘no-no.’ The attestation from the employee, must be a written record for L&I to audit and subsequently apply penalties for employer violations.
  • According to L&I, asking an employee about their vaccination status is not a HIPAA violation, but follow-up questions will place employers in ‘Dangerous Waters.’ This is consistent with the previous examples given by the Washington Policy Center on the HIPAA law application to the L&I rules. An employee may tell an employer vaccination status, but without consent, the employer may not be able to tell L&I. (5/26 Update - The vaccine passport mandate may also violate the Americans with Disabilities Act - ADA).
  • The Governors office confirmed the state of emergency will continue past June 30.
  • The Department of Health confirmed that employers don't have to check if customers are vaccinated. It is an ‘honor system.’
  • The Governor’s office confirmed the state mask mandate will remain for unvaccinated people after June 30 because there isn't yet a vaccine for those under 12. There is no projected date for removing mask mandates.

L&I asking for the information is placing a business in a position of potentially violating HIPAA or losing its business license. This is based on the enforcement penalties that L&I says they will impose if you violate the rules L&I has put in place for COVID vaccinations.  Either way, enforcing the state’s vaccine passport rules will put the employer in legal jeopardy.

State officials should not be able to force workers to provide vaccine passports and should not make businesses and other organizations require employees to report private medical information. They should certainly not make workers display a special badge or credential that advertises a person’s private medical information for all to see.

The state’s L&I rules to create a Washington state vaccine passport with information collected and enforced by businesses is a clear overreach of state government and should be repealed immediately.