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No vax, no service: Will businesses lose COVID-19 liability protections if they need vaccines?

As the delta and lambda variants of COVID-19 continue to increase nationwide, signs saying “No vaccine, no service” are starting to appear in businesses in Georgia.

But companies that choose to shut their doors to the unvaccinated could open themselves up to discrimination and employment disputes, some experts say.

And lawyers question whether a private company’s implementation of a vaccination mandate for clients would nullify its liability protection under the Georgia COVID-19 Pandemic Business Safety Act.

Sheri Oluyemi, attorney at Sheri Oluyemi’s law firm in Atlanta. (Courtesy photo)

Under this law, businesses in the State of Peach are protected from civil claims arising from alleged exposure, transmission, infection or potential exposure to COVID-19 until July 14, 2022.

“I was trying to determine whether Georgia’s COVID-19 Pandemic Business Security Law… offers some kind of discriminatory protection,” said labor lawyer Sheri Oluyemi. “I didn’t find any.”

After advising employers and employees on best practices regarding vaccination protocols, Oluyemi said state-imposed liability protections remain intact for businesses like Atlanta’s Argosy Restaurant and Bar, which announced the Instagram it would only be useful to vaccinated customers after experiencing “a few positive cases of COVID” among staff.

“I am vaccinated and contracted COVID after receiving the vaccine,” Oluyemi said. “I would say that just because you have received the vaccine does not mean that you should not be careful of people who contract COVID on your premises, and, therefore, in need of it. [vaccinated-only] protection.”

“Not a protected class”

Brett Coburn, Alston & Bird partner in Atlanta, GA.  Courtesy photo Brett Coburn, Alston & Bird partner in Atlanta. (Courtesy photo)

Atlanta-based Alston & Bird partner Brett Coburn agreed.

“From a legislative point of view and from a public policy point of view, when [the Georgia COVID-19 Pandemic Business Safety Act] was adopted, no one thought about the fights we have now, ”Coburn said. “I don’t see anything that I’ve read as a potential way for someone to say that a business has lost the protection afforded by the law, due to a decision on which customers to serve or not to be used, depending on vaccination status. “

Unvaccinated clients who file discrimination claims may have a harder time proving their case, lawyers said.

“A requirement that everyone be vaccinated to enter a place is race and gender neutral. I think it would be too much to try to make a discrimination claim under these circumstances, ”Coburn said. “I don’t think these lawsuits are likely to gain ground, [but] that doesn’t mean people might not bring them.

Oluyemi agreed.

“It’s just not a protected class,” she said.

Both lawyers stressed that a successful discrimination complaint would depend on the existence of laws protecting an unvaccinated client from the alleged discrimination.

“If you had someone who couldn’t get the vaccine because of a health problem, they could file a claim under Title III of the Americans with Disabilities Act, which prohibits discrimination on the basis of disability in public accommodation, ”said Coburn. “Under this law, you cannot recover the actual damage. You can get an injunction and legal fees only. So if someone is looking for a hefty salary to get out of it, that claim doesn’t really get them very far. “

Apart from immunization exemptions granted by medical and religious protections in employment disputes, Oluyemi said no other current protective laws apply. She noted that discrimination laws included in Article 1981 of the Civil Rights Act of 1866 did not have immunization coverage.

“Section 1981 protects discrimination based on race, not only in employment but also in the receipt of services. You cannot discriminate on the basis of race for housing. You cannot discriminate for bank loans. It’s protected by section 1981, ”Oluyemi said. “Is there a section somewhere that says you can’t discriminate on the basis of immunization status?” I do not know any.

Read more:

Vaccine Mandate Tracker: Law Firms Requiring Vaccination for Office Returns

The undeclared benefits of vaccination warrants

“People’s patience is running out”: what stimulates vaccination mandates in some large law firms

What liability protection does Georgia’s COVID-19 law offer to hotel business owners?