Governor Ducey Bans ?Vaccine Passports? for State and Local Governments

Fennemore Client Alert

Governor Ducey Bans ?Vaccine Passports? for State and Local Governments

On April 19, 2021, Gov. Doug Ducey issued Executive Order 2021-09 banning state and local governments and businesses under contracts with the state from requiring a “vaccine passport” to receive services or enter an area. In doing so, Arizona becomes the next in a line of states that have recently enacted legislation or executive orders to prohibit so-called “vaccine passports” in whole or part.

The new Executive Order generally applies to the following:

• State agencies, counties, cities, towns, and other political subdivisions; and
• Businesses receiving public funds from the State of Arizona pursuant to a contract to provide service to the public.
   

State and local governments and agencies are prohibited from adopting any measures that require individuals to provide documentation of COVID-19 vaccination status as a condition of entering any building, facility or other space, or as a condition of receiving any service, permit, license or other work authorization requirement—unless proof of vaccination is currently a requirement under state law.

Businesses providing public services under a contract with the state likewise cannot require a customer to provide documentation regarding the individual’s COVID-19 vaccination status as a condition of receiving state contracted services unless proof of vaccination is currently a requirement under state law.

The new Executive Order, however, excepts certain types of businesses that may still require documentation of COVID-19 vaccines before allowing entry or providing services, such as the following:

• Private businesses are not covered by this Order and, thus, may require COVID-19 vaccine documentation in order for customers to enter or receive services.
• Health care institutions, including hospitals, nursing care institutions, residential care institutions, intermediate care facilities for individuals with intellectual disabilities, group homes, or other medical facilities may still require documentation of a patient, resident, employee, or visitor’s COVID-19 vaccination status.
• Child care centers or homes, schools, and universities are excepted and may require a student’s vaccination records pursuant to state law.
• State and local health departments may require individuals to provide documentation of COVID-19 vaccination status during a COVID-19 outbreak investigation.

The new Executive Order, like others, will remain in place until the termination of the public health emergency related to the COVID-19 pandemic.

Businesses should carefully review Executive Order 2021-09 and consult legal counsel if there is any question about whether or how this Executive Order applies to your business.