L&I's virus passport rules overreach

New COVID workplace restrictions, issued by Washington State Labor and Industries (L&I) late last Friday, May 21st, require employers to check employee vaccine documents before allowing relaxation of social distancing and mask requirements in the workplace.

The new state rules require an employer to confirm, and have employees prove their vaccine medical status. The process used to verify vaccination, and the medical status of the employee’s vaccination record, including the employee medical information must be made available for L&I for inspection.

Vaccination status can be collected in several ways, including daily checks, attestation from the employee and documentation from a health professional or state immunization information system.

Most troubling though, is the L&I rule that an employee badge or credential be marked to show vaccination status, a clear violation of medical privacy.

The rules also do not allow any medical, personal or religious exemptions.

By requiring a vaccine passport, the new L&I rules, place businesses and non-profit organizations in a difficult position. The rules require them to discriminate against people who may not be vaccinated for medical, religious or personal reasons.

This would have a similar harmful effect as the failed contact tracing rule that was tried by the state in mid-2020. Contract tracing was highly unpopular, failed to gain traction and state officials ultimately abandoned it.

Schweitzer Engineering Laboratories, a company of scientists and engineers based in Pullman, has written to Governor Jay Inslee, asking him to repeal the L&I rules. SEL has already, voluntarily, been following CDC workplace guidelines and has required non-vaccinated employees to wear masks. SEL, however, is opposed to the mandatory collection of private medical information and the subsequent sharing of that information with state government officials and articulately voices what thousands of other business owners are now thinking after learning about these new rules.

The ability for employees to work unhindered is guaranteed under the 14th Amendment of the U.S. Constitution. It states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Certainly, a requirement that a business determine the vaccination status for every employee, and subsequently require masks for some and not others, abridges the rights of Washington residents and the businesses owners themselves.

This is not only a moral affront; it is an unnecessary overreach by the state. Requiring private Washington businesses to determine an employee’s medical status based on government guidance is outrageous. Business owners should determine how they want to operate their own workplace safely.

The final, and frankly, disturbing suggestion from L&I to mark an employee identification with their vaccination status, creates a discriminatory class system for employees.

The safety of Washington residents is of course important but both residents and business owners have been sensible in their approach to the COVID-19 crisis and can obviously self-regulate to keep their businesses and our communities safe. Small business owners will continue to do voluntarily everything they need to do keep their guests and employees safe.

Other diseases, some that are more contagious than COVID-19, do not require proof of vaccination before an employee can work, unrestricted. Why should COVID-19 be the exception?

It is not the state’s responsibility to make medical decisions for its residents and then restrict the freedom to work and conduct commerce based on those decisions.

The state should not be requiring businesses and organizations to determine employee’s medical status and make people wear a special badge to enforce government rules before being allowed to conduct business without restrictions.

The state’s L&I rules are a clear overreach of state government and should be repealed immediately.

– Mark Harmsworth is the Center for Small Business director at the Washington Policy Center. Email him at [email protected].