Having restaurants ask for proof of vaccination does not violate HIPAA because HIPAA only applies to entities within the health care field and it does not prohibit asking questions about someone's health.

Major cities have either instituted or are considering mandates that require anyone planning to dine or work indoors at restaurants (or visit gyms or movie theaters) show proof they’re vaccinated and/or require face coverings.

While the National Restaurant Association strongly encourages that employees and customers get vaccinated, putting the responsibility for verifying vaccination status on the operator puts a host of new pressures on already struggling restaurants.

If your operation falls under a proof-of-vaccination mandate, be ready for what may follow.

Are mandates legal?

Having restaurants ask for proof of vaccination does not violate HIPAA because HIPAA only applies to entities within the health care field and it does not prohibit asking questions about someone's health.

In general, case law supports the decision to require employees to get a COVID-19 vaccine. However, under the Americans with Disabilities Act, if the employee cannot get vaccinated because of a disability you still must analyze whether there are any reasonable accommodations available for that employee. Similarly, under Title VII of the Civil Rights Act, an employer must consider reasonable accommodation for employees whose religious beliefs prevent them from getting vaccinated.

The mandates we’re seeing say employees and customers must show proof of vaccination to work or dine inside the operations. Employers must continue to look for reasonable accommodation for employees who cite a disability or religious reason for not getting a vaccine.

Restaurants should comply with a state or local mandate requiring them to ask for proof of vaccination unless the mandate is challenged in court and a judge says otherwise. Any mandates are subject to legal challenge, so it’s important to be consistent in how you carry it out.

How to handle unvaccinated customers

If a customer says they aren’t vaccinated, or they have unvaccinated kids with them, you can explain that your restaurant is prohibited by law from serving or seating them indoors due to the local mandate.

If a restaurant wants to require proof of vaccination on its own, without a local or state mandate, the Association suggests caution because proof of vaccination has been politicized and, like mandated face coverings, could be a safety risk to employees who have to enforce either the operation’s policy or the mandate.

If you decide to mandate vaccines and a guest is not vaccinated, you can offer to seat them outside, offer to prepare their orders to go, or perhaps offer a coupon for a meal or voucher to return at another time when the restaurant can accommodate them.

You cannot ask customers why they’re not vaccinated. You can’t ask them for proof of a disability or doctor’s note that explains their lack of vaccination.

You can only work with them to find another way to serve them.

Prepare staff to handle the mandate

Hold shift meetings to bring the team up to speed on the vaccination mandate. Explain exactly what they’re required to do, what they are and are not permitted to ask or say, and the scenarios they should prepare for.

  1. Understand the local order. Management should be sure they have a legal interpretation of the requirements for admitting anyone and what proof(s) of vaccine will be acceptable. Be sure to understand what you can and cannot ask people if they claim an accommodation based on health/disability, or religious objection to vaccination.
     
  2. Understand what constitutes acceptable proof of vaccine. Aside from physical cards, does your state or local municipality have a vaccine app of some kind? Is a copy from a health care patient portal acceptable? Are photos of proof acceptable? Be consistent.
     
  3. How should they convey the policy to guests? (E.g., “We are under a local mandate to limit indoor dining to guests who are vaccinated.”) The request can be made by a host at the door or the first contact behind a service counter. A manager should be available if the guests demonstrate any type of aggressive speech or behavior. Sign up to watch our free ServSafe Conflict De-escalation COVID-19 Precautions training video and share with your staff.
     
  4. Develop a plan for what to do if the customer has no proof or the proof provided is not acceptable. Make staff aware of the options they can offer customers who have no proof. Outdoor seating, takeout, or a coupon toward a future visit or future order are examples. Pose those options as soon as someone indicates they do not have proof of vaccination.
     
  5. Develop a plan to protect your employees from disgruntled customers. As noted above, if the guest begins to show any threatening behavior, a manager should be nearby who can intervene and, if needed, contact law enforcement to remove the guest. Designate one member of personnel to handle all conflict inquiries afterward.

Communicate the mandated policy

Avoid surprising or disappointing customers (which can escalate into conflict) by amplifying your proof-of-vaccination policy.

If it’s a local mandate you’re required to follow by law, make that clear. If customers have questions, provide a means to contact you. List service alternatives for the unvaccinated, including customers with children. Clarify the policy applies to indoor dining only.

  1. Add an explainer in all social media posts
  2. Add a website popup on your homepage
  3. List it on online menu apps and third-party ordering apps
  4. Make sure the policy appears when guests use your online reservation platforms
  5. Add the policy on review sites
  6. Train staff to explain the policy over the phone
  7. Put signage on the front door and in the entry

Promote vaccinations

The faster vaccinations take place, the sooner you can welcome more guests—and staff—into your restaurant. To encourage employees to get vaccinations without making them mandatory, offer them time off with pay to cover their costs of transportation and eliminate their fear of lost wages. The U.S. Department of the Treasury recently extended the paid leave tax credit for this purpose.

Typically, companies are offering employees from two to four hours of paid time off to get vaccines. To qualify for the paid time off, ask employees to furnish proof of vaccination. If some employees still seem reluctant, put them in touch with trusted, third-party experts to provide information about vaccinations and who can answer any questions they have.

For more ideas, check out How to Build COVID-19 Vaccine Confidence in the Workplace from the CDC.