Cities step up their efforts to combat the COVID-19 Delta variant. New York City, New Orleans, and San Francisco have all announced requirements for certain persons to produce evidence of COVID vaccination status in order to patronize or work indoors at certain establishments. Adding to an already complex patchwork of COVID-related regulation – screening, social distancing, contact tracing, paid-time off, record keeping, etc. – certain businesses will need to absorb another layer. But while doing so, they should avoid creating new data privacy and security risks.

In general, each of the cities requires businesses in certain industries such as food services (restaurants, bars), fitness, and entertainment (hotels, casinos, music halls) to require employees, patrons, customers, contractors, and others to provide proof of vaccination to go indoors at these establishments. In some cases, proof is required even for certain outdoor activities. For example, in New Orleans, the requirement applies to outdoor events of more than 500 people if total attendance is more than 50% of the outdoor venue’s capacity.

There are several exceptions to these requirements. For example:

  • Persons under 12 do not have to provide proof of vaccination.
  • In New Orleans, a negative PCR test within 72 hours of access can be provided in lieu of vaccination proof. This is not permitted in San Francisco, which requires proof of full vaccination. See FAQs for COVID-19 Health Order C19-07y. NYC requires proof of at least one dose of the COVID-19 vaccination.
  • San Francisco businesses may allow patrons wearing a well-fitted mask to use a restroom indoors without vaccination verification. There is a similar exception in NYC.
  • If an individual in NYC is unable to show proof of vaccination due to a disability, the business must engage in a cooperative dialogue to see if a reasonable accommodation is possible. Reasonable accommodation is not required if the individual would create a direct threat to other customers or employees, or impose an undue hardship on the business. A similar approach is required for employees.

A significant issue for covered businesses, however, is whether they must collect any additional information in order to comply, and how should that information be safeguarded, retained, and/or disclosed, as necessary. Businesses will want to have sufficient proof that they have complied to avoid an enforcement action. In New York City, when enforcement begins on September 13, 2021, noncompliant establishments may be subject to a fine of $1,000, or more for repeated violations. But this does not mean they need to collect sensitive personal information.

The cities provide several ways for individuals to communicate proof of COVID vaccination.

  • In New Orleans, individuals can use the LA Wallet app; an original, digital photograph, or photocopy of CDC vaccination cards (both sides); or an official vaccine record issued by another state, foreign nation or the World Health Organization.
  • In San Francisco, one can show their CDC Vaccination Record Card (CRC), an image of the card saved to one’s smartphones, a digital COVID-19 vaccine record issued by the State of California, or an approved private app.
  • In NYC, any of the following could be a Key to NYC: one’s CDC vaccination card, the NYC COVID Safe App, the New York State Excelsior App, and official vaccine record, or a photo or hard copy of an official vaccination record of a vaccine administered outside the U.S.

In NYC, businesses also must check the ID of each person required to show proof of vaccination who appears to be 18 or older to confirm the individual is the same person as listed on the proof of vaccination. The ID must contain either the person’s name and picture, or name and date of birth. However, ID checks are not required for individuals that can be matched against information the business already maintains, such as employees.

Do I need to check other identification besides proof of vaccination?

Yes. Identification bearing the same identifying information as the proof of vaccination must also be displayed. (underline added)

See NYC’s Key to NYC FAQs. San Francisco has a similar requirement. See San Francisco FAQs (“Businesses subject to this new requirement must cross-check proof of vaccination against each patron’s photo identification.”)

Some of these methods raise privacy and data security issues for individuals, especially for those choosing to use apps. Pennsylvania is just one state reeling from a data breach involving a COVID app that exposed medical information of thousands of its citizens. But there are significant questions for businesses – what information do they have to collect, if any, and what steps should they take to process and safeguard that information.

NYC’s Key to NYC FAQs provides:

Who must display proof of vaccination?

Employees, patrons, interns, contractors, and volunteers at Key to NYC establishments must display proof of vaccination. Businesses may keep a record of people who have previously provided proof of vaccination, rather than require the proof be displayed every time the person enters the establishment. (underline added)…

What documents do I need to maintain?

You must have a written record that describes how you will verify proof of vaccination for staff and patrons. The record must be on site and available for inspection.

Based on the above, covered NYC businesses are not required to collect information from individuals about their vaccination status. They only need to document how they will verify proof. (NYC provides a sample written protocol) The guidance suggests, however, that businesses could maintain a record of persons who already confirmed vaccination status for ease of administration. But, doing so arguably would create confidential personal information.

New Orleans and San Francisco also do not require businesses to collect proof of vaccination information, although businesses in San Francisco should assess whether the California Consumer Privacy Act (CCPA), as amended, applies and whether additional compliance measures should be implemented.

So, the good news is that while there are some additional compliance requirements in these cities concerning COVID, covered businesses should not have to collect personal information from customers or employees in most cases to meet these requirements. When implementing these measures, businesses should consider advising employees to avoid collecting personal information. Of course, in cases where an employee or patron seeks a reasonable accommodation, the business may need additional information to process that request. In that case, there should be procedures in place to minimize the information needed, to safeguard what is collected, and to limit disclosure of what is retained.

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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.