On May 25, 2021, Governor Brian Kemp signed an Executive Order (Order) prohibiting any state agency, provider of state services, or state property from implementing a Vaccine Passport Program (VPP)¹ or otherwise requiring an individual to provide proof of COVID-19 vaccination.  The Order further states that no data from the Georgia Registry of Immunization Transaction and Services will be shared with public or private entities for the purpose of facilitating a VPP or for otherwise determining the COVID-19 vaccination status of any individual.

Critical Takeaways for Employers

While several states have recently issued orders prohibiting business from inquiring about a customer’s vaccination status, Georgia is the first to address whether proof of COVID-19 vaccination can be used as a condition of employment.  Although a bit ambiguous, Georgia’s Order provides that “no state or agency employee shall be afforded employment-related privileges, accommodations or circumstances of employment or otherwise be held subject to different rules or requirements than other employees” based on COVID-19 vaccination status.  Specifically, the Order provides that state agencies, providers of state services, and state properties are prohibited from requiring proof of COVID-19 vaccination as a condition to, among other things, being employed by or enjoying any other rights or privileges provided by the state.  

Private employers are prohibited only from accessing or using data from the Georgia Registry of Immunization Transactions and Services or any other COVID-19 vaccination data held by the state for a VPP or to otherwise determine the vaccination status of individuals for, among other things, employment purposes.  As such, while the Order prohibits private employers from accessing or using the vaccination data held by the state, the Order does not explicitly prohibit private employers from requesting proof of vaccination from their employees through any source other than the state-held data. 

Importantly, private employers that elect to request proof of vaccination must be mindful they do not implicate the Americans with Disabilities Act by asking subsequent questions that might elicit information about a disability.  The EEOC’s May 28, 2021 guidance clarifies that it believes a person’s vaccination status is medical information that an employer must keep confidential and stored separately from an employee’s personnel file.  Additionally, while the Order does not address whether a private employer may condition employment or otherwise exclude individuals from the workplace if they refuse to provide proof of vaccination, this does not mean that private employers may do so with impunity.  Before taking any such course of action, private employers must conduct an individualized analysis and determine whether any rights under federal or state law apply.