II
118th CONGRESS
1st Session
S. 181
IN THE SENATE OF THE UNITED STATES
January 31, 2023
Mr. Cruz introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions
A BILL
To protect individual liberty, ensure privacy, and prohibit discrimination with respect to the vaccination status of individuals, and for other purposes.
Short title; table of contents
Short title
This Act may be cited as the No Vaccine Passports Act
.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Severability.
TITLE I—General provisions
Subtitle A—Health information privacy protections
Sec. 101. Prohibition on establishment of Federal vaccine passports and tracking of individuals.
Sec. 102. Vaccine status protections under HIPAA privacy regulations.
Subtitle B—Consent to vaccination
Sec. 111. Vaccinations.
TITLE II—Prohibition of discrimination based on vaccination status
Subtitle A—Nondiscrimination in employment
Sec. 201. Definitions.
Sec. 202. Discrimination prohibited.
Sec. 203. Defenses.
Sec. 204. Remedies and enforcement.
Subtitle B—Nondiscrimination in public accommodation
Sec. 211. Definitions.
Sec. 212. Prohibition of discrimination by places of public accommodation.
Sec. 213. Prohibition of discrimination in specified public transportation services provided by private entities.
Sec. 214. Exemptions for private clubs and religious organizations.
Sec. 215. Enforcement.
Sec. 216. Effective date.
Subtitle C—Nondiscrimination by a public entity and access to Federal services
Sec. 221. Nondiscrimination by a public entity.
Sec. 222. Access to Federal services.
Findings
Congress finds as follows:
In December 2019, reports began circulating that hospitals in Wuhan, China, were seeing cases of a pneumonia-like respiratory illness of unknown origins.
On December 31, 2019, an automated translation of a Chinese media report about a novel respiratory outbreak was posted to ProMED, one of the largest public emerging disease and outbreak reporting systems used to promote communication among infectious disease specialists, including scientists, physicians, veterinarians, epidemiologists, and public health professionals.
The ProMED posting prompted the World Health Organization (referred to in this section as WHO
) to instruct its China Country Office to request verification of the outbreak from the communist government of the People’s Republic of China.
In response to the WHO-prompted inquiry, the Wuhan Municipal Health Commission issued its first public statement on the outbreak, saying it had identified 27 cases.
On January 3, 2020, in what is clear conduct by the Chinese government to cover up the origins and dangers posed by the outbreak, Dr. Li Wenliang, a physician at Wuhan Central Hospital, was reprimanded by local police in the Public Security Bureau for spreading allegedly false statements
about the outbreak online.
On January 3, 2020, the Chinese Center for Disease Control and Prevention (referred to in this section as China CDC
) Director-General Gao Fu told the United States Centers for Disease Control and Prevention (referred to in this section as United States CDC
) Director Robert Redfield about a pneumonia outbreak in Wuhan, Hubei Province, China.
On January 6, 2020, the Secretary of Health and Human Services, Alex M. Azar II, and the United States CDC Director Redfield offered to send United States CDC experts to China and the United States CDC issued a Watch Level 1 Alert
for Wuhan, meaning that the United States CDC recognized a heightened risk for travelers, cautioning travelers to use health precautions when traveling to areas in China.
On January 11, 2020, a team led by Professor Yong-Zhen Zhang of Fudan University in Shanghai posted the genetic sequence of the novel virus on an open-access platform, sharing it with the world.
On January 14, 2020, the WHO tweeted, Preliminary investigations conducted by the Chinese authorities have found no clear evidence of human-to-human transmission of the novel coronavirus (2019–nCoV) identified in Wuhan, China
. The WHO’s assertion has been proven false and completely contrary to medical science given that there have been nearly 163,000,000 cases of infection worldwide, resulting in more than 3,380,000 deaths.
On January 20, 2020, China confirmed person-to-person transmission of the novel coronavirus and infections among medical workers.
On January 21, 2020, the United States CDC announced the first COVID–19 case in the United States.
On January 30, 2020, WHO Director-General Tedros declared the epidemic a Public Health Emergency of International Concern, and President Donald J. Trump announced the formation of the President’s Coronavirus Task Force. In a statement from the WHO regarding the second meeting of its International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019–nCoV), the Committee specifically did not recommend any travel or trade restriction based on the current information available
.
On January 31 2020, President Trump suspended entry into the United States of most foreigners who were physically present in mainland China during the preceding 14-day period, effective February 2, 2020, and Secretary Azar declared a public health emergency for the United States to aid response to the novel coronavirus.
On February 1, 2020, then-Presidential candidate Joe Biden recklessly downplayed the risk of the virus, suggesting in a tweet that President Trump’s efforts to limit the spread of the virus were nothing more than hysteria, xenophobia, and fear-mongering
.
Numerous individuals criticized these travel restrictions. When asked if you had to, would you close down the borders?
to stop the spread of coronavirus, Senator Bernie Sanders said, no
. When asked about these travel restrictions, Representative Nancy Pelosi stated, actually tens of thousands of people were allowed in from China, it wasn’t as it was described as this great moment
. WHO Director-General Tedros Adhanom Ghebreyesus was reported to say that widespread travel bans and restrictions were not needed to stop the outbreak and could have the effect of increasing fear and stigma, with little public health benefit
. Reportedly, Representative Ami Bera stated that the travel ban probably doesn’t make sense
since the outbreak had already spread to several other countries, that such measures were causing an antagonistic relationship with the Chinese, and such mandatory quarantines may be overkill
.
Health experts have since noted that the early United States restrictions imposed on travelers from China saved American lives. Former United States CDC director Dr. Tom Frieden noted that the travel ban with China made a difference… It resulted in a significant delay in the number of people coming in with infection and because of that, that bought time in the U.S. to better prepare.
.
On February 26, 2020, the United States CDC confirmed a case of COVID–19 in California in a person who reportedly did not have relevant travel history or exposure to another known patient with COVID–19.
On February 29, 2020, the United States CDC reported the first COVID–19 death in United States, though later public reports indicated that the first death from COVID–19 may have been weeks earlier.
In a 60 Minutes interview posted on March 8, 2020, Dr. Anthony Fauci stated that right now in the United States, people should not be walking around with masks … there’s no reason to be walking around with a mask. When you’re in the middle of an outbreak wearing a mask might make people feel a little bit better, and it might even block a droplet, but it’s not providing the perfect protection that people think that it is. And often, there are unintended consequences, people keep fiddling with the masks, and they keep touching their face… But, when you think masks, you should think of healthcare providers needing them and people who are ill. The people who, when you look at the films of foreign countries and you see 85 percent of the people wearing masks, that’s fine. That’s fine. I’m not against it. If you want to do it, that’s fine … It could lead to a shortage of masks for the people who really need it.
.
On May 15, 2020, the Trump administration announced the establishment of Operation Warp Speed, a public-private partnership to expedite the timeline for development, large-scale manufacturing, and delivery of a safe and effective COVID–19 vaccine to the American public. The initial goal of the project was to develop at least 1 vaccine and begin administering it to Americans before the end of 2020. As reported on BioCentury, Dr. Anthony Fauci noted that the fastest a vaccine might be ready for use in an emergency would be 1 year, although the process could take up to 2 years. Before the Senate on March 3, 2020, Dr. Fauci stated that the process would likely take at least 1 to 1½ years to have a vaccine that could be administered to American persons. Some, such as the analytics firm Clarivate, concluded that it might take at least 5 years for the leading vaccine candidates, like Moderna, to complete the development process through full regulatory approval.
Operation Warp Speed and other government actions sped COVID–19 vaccine development by enabling typical vaccine development steps to be taken simultaneously with manufacturing and distribution planning. As part of these actions, the Federal Government made investments in critical manufacturing capacity, giving pharmaceutical companies confidence that if they invested in developing a vaccine, once the vaccine received authorization from the Food and Drug Administration, these companies would be able to immediately begin distributing the vaccine.
On July 14, 2020, the United States CDC issued stronger recommendations to wear masks as a strategy for preventing the spread of COVID–19. United States CDC Director Robert Redfield, in a news release from the agency, identified masks as one of the most powerful weapons we have to slow and stop the spread of the virus
.
On December 11, 2020, the Food and Drug Administration issued the first emergency use authorization (referred to in this section as EUA
) for a vaccine for the prevention of COVID–19 in individuals 16 years of age and older. The EUA allowed the Pfizer-BioNTech COVID–19 Vaccine to be distributed in the United States.
By June 2022, subsequent modifications to the EUA by the Food and Drug Administration expanded the Pfizer-BioNTech COVID–19 vaccine application to include eligibility for individuals from 6 months of age and older.
On December 18, 2020, the Food and Drug Administration issued an EUA for the second vaccine for the prevention of COVID–19 in individuals 16 years of age and older. The EUA allowed the Moderna COVID–19 Vaccine to be distributed in the United States for use in individuals 18 years of age and older.
By June 2022, subsequent modifications to the EUA by the Food and Drug Administration expanded the Moderna COVID–19 vaccine to include eligibility for individuals from 6 months of age and above.
On February 27, 2021, the Food and Drug Administration issued an EUA for the third vaccine for the prevention of COVID–19. The EUA allowed the Janssen COVID–19 vaccine to be distributed in the United States for use in individuals 18 years of age and older.
On July 13, 2022, the Food and Drug Administration issued an EUA for the fourth vaccine for the prevention of COVID–19 in individuals 18 and older. The EUA was further expanded to include individuals 12 years of age and older. The EUA allowed the Novavax COVID–19 Vaccine, Adjuvanted to be distributed in the United States for use in individuals 12 years and older.
On August 23, 2021, the Food and Drug Administration approved the first COVID–19 vaccine, Pfizer-BioNTech’s Comirnaty (COVID–19 vaccine, mRNA) for individuals 16 years of age and older.
On January 31, 2022, the Food and Drug Administration approved the second COVID–19 vaccine. The Moderna COVID–19 vaccine Spikevax
is approved for individuals 18 years of age and older.
Because of this public-private partnership and the funding and support from Congress, multiple COVID–19 vaccines have been developed and manufactured and as of January 19, 2023, approximately 667,815,331 vaccine doses had been administered in the United States.
Despite the successful development, rollout, and uptake of the COVID–19 vaccines, it is now known that the vaccines do not fully prevent infection from the SARS–CoV–2 virus.
The emergence of variants of SARS–CoV–2 has resulted in the development of new COVID–19 vaccines and booster shots.
According to the Food and Drug Administration fact sheets on COVID–19 vaccines, there are certain populations for whom existing COVID–19 vaccines are not indicated or authorized or for whom there is insufficient data to inform vaccine-related risks including—
people who have had a severe allergic reaction to a previous dose of one of the vaccines or has a severe allergy to any of the vaccine components; and
people with certain pre-existing conditions such as bleeding disorders and women who are pregnant, trying to get pregnant, or breastfeeding.
Because of potential risks that the vaccine poses to certain people, it is important that every patient is able to consult his or her doctor to determine whether one of the COVID–19 vaccines and booster shots is appropriate for that patient.
Consistent with fundamental human rights, and medical and legal ethics and proper standards of medical care, every American has the right to informed consent
with respect to medical treatment, meaning that he or she has a right to be fully informed about the nature of his or her health care and to participate in and voluntarily make decisions related to his or her care. In addition, every patient has a right to medical privacy to expect that the decisions and nature of care will be kept confidential by his or her health care provider and anyone who has access to the individual’s medical records, including vaccination records.
At various times in history, governments and medical professionals have violated these and other inherent rights, including by coercing patients, failing to properly inform patients of, or even intentionally being deceptive with patients about, their rights and the risks inherent with various medical procedures, experiments, and studies, including the Tuskegee syphilis experiments, forced sterilization, lobotomy procedures, electro-shock therapy, certain psychological studies, collection and utilization of individuals’ cells and parts of their body, or from fetal tissue of a patient’s offspring, without knowledge or consent, and eugenics laws.
The absence of informed consent not only constitutes a violation of medical ethics and standards of care, in some cases, treatment may also constitute a crime, such as battery.
Criminal battery stemming from violations of medical ethics and informed consent standards have led to a significant degree of distrust of the government, public health officials, and medical professionals by certain groups and communities including among the most vulnerable populations such as ethnic minorities, immigrants, economically disadvantaged, unmarried mothers, people with disabilities, and individuals with mental illnesses.
On March 19, 2021, the WHO released draft recommendations for a smart vaccine certificate in what amounts to a form of a vaccine passport
that would, per WHO’s Smart Vaccination Certificate Working Group
, support COVID–19 vaccine delivery and monitoring
and to serve current and future requirements, toward the dual purposes of (1) supporting continuity of care; and (2) cross-border uses
.
In July 2021, the European Commission adopted the EU Digital COVID Certificate (EUDCC), a COVID–19 vaccine passport.
In April 2021, the State of New York launched the first COVID–19 vaccine passport in the United States, known as the Excelsior Pass.
The White House, while saying the COVID–19 Task Force would not create a vaccine passport, engaged in a multi-agency coordination effort led by the Office of the National Coordinator for Health Information Technology to develop criteria and principles for a vaccine passport created by the private sector.
During a March 2, 2021, virtual meeting lead by the Federal Health IT Coordinating Council on behalf of the Biden Administration, a slide presentation included the following: Proof of individual COVID-related health status is likely to be an important component of pandemic response, proof of immunization will likely become a major, if not the primary, form of health status validation,
and a unified Federal approach [is] required to ensure Federal activities are working toward the same common goals for vaccine [passports].
Additionally, the presentation suggested the Biden Administration expects that Federal entities
would likely require vaccine verification for a variety of purposes
and that the Federal government will inevitably be involved with vaccine credential solutions… .
.
Despite previous reassurances to not pursue COVID–19 vaccine mandates or passports, the Biden Administration has issued a number of vaccine mandates on millions of Americans through executive orders, memoranda, and Federal rulemaking.
On August 24, 2021, the Secretary of Defense issued a memorandum requiring all Department of Defense Service Members to be vaccinated against COVID–19 as a condition of remaining in the service.
On September 9, 2021, the Biden Administration issued an executive order mandating all employees of Federal contractors be vaccinated against COVID–19 as a condition of employment.
On September 14, 2021, the Biden Administration issued an executive order mandating all Federal employees be vaccinated against COVID–19 as a condition of employment.
On November 4, 2021, the Centers for Medicare & Medicaid Services issued an interim final rule requiring employees of Medicare and Medicaid certified providers and suppliers be vaccinated against COVID–19 as a condition of employment.
On November 4, 2021, the Occupational Safety and Health Administration issued an emergency temporary standard requiring private employers with 100 or more employees to either require employees to receive a COVID–19 vaccine or to require employees to provide regular proof of a negative COVID–19 test.
A number of cities in the United States implemented vaccine passports requiring individuals to show proof of vaccination to enter various establishments.
On August 16, 2021, the city of New Orleans implemented the requirement of a COVID–19 vaccine or a negative test in order to enter indoor establishments and venues.
On August 20, 2021, the city of San Francisco began to require proof of vaccination against COVID–19 in order to enter indoor establishments and venues.
On September 13, 2021, the city of New York began to require its Excelsior Pass or Key-to-NYC COVID–19 vaccine passport in order to enter indoor establishments and venues.
On October 1, 2021, the city of Los Angeles began to require proof of a COVID–19 vaccine in order to enter indoor establishments and venues.
On October 25, 2021, the city of Seattle began to require proof of vaccination against COVID–19 or a negative test in order to enter indoor establishments and venues.
In January 2022, the cities of Boston, Chicago, Philadelphia, Minneapolis, and St. Paul began to require proof of a COVID–19 vaccine in order to enter indoor establishments and venues.
On February 15, 2022, Washington, DC, began to require proof of vaccination against COVID–19 in order to enter indoor establishments and venues.
Throughout 2021 and 2022, a large number of private employers imposed a COVID–19 vaccine mandate on employees as a condition of employment. This has resulted in widespread discrimination based on vaccination status and loss of employment and employment opportunities.
The development, implementation, and utilization of vaccine passports, whether by Federal or State government, or the private sector, has led to significant misuse, abuse, and discrimination against the people of the United States. The use of such passports led to the denial of constitutionally protected freedoms, such as freedom of association and freedom of movement and allowed the government and corporations to track people’s health status on a large-scale basis.
The widespread utilization of vaccine passports has led to discrimination by businesses that provide public accommodations requiring a customer to demonstrate his or her health status, through the presentment of a vaccine passport or other papers
or by requiring that the customer disclose his or her protected health information, before the business agrees to serve or otherwise do business with such individual, meaning the denial of service in such cases could be based on an individual’s disability, health status, or familial status.
Despite the use of vaccine passports and vaccine mandates leading to a clear violation of constitutional rights, there currently exists no clear regulatory framework to fully protect the privacy of United States citizens and United States nationals with respect to their vaccination records and negative COVID–19 test results.
The widespread acceptance and implementation of vaccine passports has also led to employment discrimination, where employers have taken adverse employment actions against employees who are not vaccinated because of an underlying health condition and without regard to the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.), which requires an interactive process whereby the employer follows the law to assess if the employee can and should be reasonably accommodated under such Act.
Given that COVID–19 vaccines do not prevent the transmission of the SARS–CoV–2 virus, the implementation and widespread utilization of vaccine passports has led and will lead to the refusal to provide services to unvaccinated persons.
The denial of public services and public accommodations, as well as adverse employment actions, based on COVID–19 vaccination status, lack of or refusal to present a vaccine passport, refusal to get vaccinated, or requiring an individual to explain the underlying reason why they are not vaccinated, could constitute unlawful discrimination, including as to sex, age, familial status, disability, or based on genetic or other health condition.
Any United States person that requests the vaccine records of a United States individual, including data such as a copy or other digital record of a vaccine passport or similar proof of vaccination, should be regarded as having collected protected health information
and should be regarded as a covered entity
as defined in the privacy regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note).
The policy of the United States is to recognize, defend, and protect the inherent rights of the individual, including the right to privacy, the right of liberty, the right to be secure in one’s person, the right of the individual to be informed about any medical procedures, treatment, or vaccination, and the right of the individual to provide or withhold consent to such procedures, treatment, or vaccination.
Congress recognizes that special vigilance is required, especially in times of crisis or emergency to ensure that government agencies do not try to take advantage of, manipulate, or inflame public fear, stoke hatred of minority groups, or increase intolerance toward the diversity that builds our Nation.
Congress finds that there is a clear need for the Federal Government to take specific action to restore public trust by protecting the privacy and voluntary informed consent rights of patients specifically regarding vaccinations and an individual’s vaccination records.
Furthermore, the protection of such individual rights to make one’s own medical decisions in consultation with his or her health care provider without fear of coercion, forced vaccination, loss of civil liberties, or risk of adverse employment action is especially needed at a time when it is critical for our Nation to increase public trust in vaccinations and increase vaccination rates in order to end the COVID–19 pandemic.
Severability
In general
If any provision of this Act, or an amendment made by this Act, or the application of any such provision or amendment to any person or circumstance is declared invalid or unconstitutional, the remainder of this Act, including any amendment made by this Act, and the application of such provisions and amendments to any person or circumstance shall not be affected.
Effect of partial invalidation, repeal, or amendment
The invalidation, repeal, or amendment of any part of this Act, or amendment made by this Act, does not release or extinguish any penalty, forfeiture, or liability incurred or right accruing or accrued under this Act (or amendment), unless the invalidation, repeal, or amendment so provides expressly. This Act, and amendments made by this Act, shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of the right, penalty, forfeiture, or liability pursuant to the previous sentence.
General provisions
Health information privacy protections
Prohibition on establishment of Federal vaccine passports and tracking of individuals
In general
No Federal funds may be used to create, establish or collaborate in the establishment of any Federal, State, private, or international vaccine passport system, vaccine tracking database, or similar system or in the creation or adoption of any related guidelines or standards, under which Federal, State, or international government agencies or private companies would be able to monitor or track individuals who have been vaccinated against COVID–19, or which could otherwise be used to limit the freedom of movement or the freedom of association of individuals based on their COVID–19 vaccination status.
Personal privacy
To the extent any Federal department or agency has received, obtained, collected, aggregated, stored, or is otherwise in possession of any data or records from officials, including public health officials, in any State, the District of Columbia, or any territory, or any third party who administered or has information related to the administration of any COVID–19 vaccinations, including health care providers and insurers, such data and records about any individuals’ vaccination status shall be destroyed by the Federal department or agency and, if in digital form, that data record shall be deleted in its entirety within 30 days of the enactment of this Act.
Reporting
For any Federal department or agency that has received and subsequently destroyed COVID–19 data or records as required by this section, the head of such agency shall, not later than 15 days after such data or records have been destroyed, submit a sworn affidavit, subject to penalty of perjury, to Congress confirming that he or she has personally assured such data or records have been destroyed.
Criminal penalties
Any person who knowingly makes or is responsible for the inclusion of a statement or representation in an affidavit under subsection (c) that is materially false, fictitious, or fraudulent shall be fined not more than $10,000, imprisoned not more than 1 year, or both.
Prohibition on federal issuance or vaccine passport or similar documentation and prohibition on vaccination requirement To enter federal property or services
In general
No Federal department or agency may issue a vaccine passport, vaccine pass, or other standardized documentation for the purpose of certifying the COVID–19 vaccination status of a citizen of the United States to a third party, or otherwise publish or share any COVID–19 vaccination record of a citizen of the United States, or similar health information.
Access to Federal property and services
Proof of COVID–19 vaccination shall not be deemed a requirement for access to Federal property or Federal services, or for access to congressional grounds or services.
Exceptions
Deidentified or anonymized information for certain purposes
The prohibition described in subsection (a) shall not apply to the aggregation and sharing of information that has been deidentified or anonymized if such information is used for purposes of Federal, State, or local public health reporting or academic studies, provided that the recipient of such information does not have the capability to reconstruct the data in any way that would allow for the determination of the vaccination status of any individual.
Limited use of information with respect to Federal employees
The prohibition described in subsection (a) and the requirement described in subsection (b) shall not apply to the possession by a Federal department or agency of COVID–19 vaccination data or records pertaining to any employee of such department or agency where such data or records will be used solely to determine if such employee would be eligible to gain admission to a foreign country during international travel in furtherance of the employee’s official duties.
Vaccine status protections under HIPAA privacy regulations
In general
The Secretary of Health and Human Services shall amend the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. 1320d–2 note) to establish the following:
Reporting by covered entities to public health entities of non-anonymized protected health information related to an individual’s vaccination status is not permissible, even during public health emergencies, without express patient consent.
Any United States person that requests the vaccine records of a United States individual shall be deemed to be a covered entity for purposes of such request.
With respect to any individual who shares their vaccine status with any covered entity, the covered entity shall comply with any request from such individual to—
delete all protected health information that identifies the individual’s vaccination status, including in relation to any records shared with the covered entities’ business associates, in all active and inactive databases; and
provide to such individual written confirmation of such deletion.
Definitions
In this section, the terms business associate, covered entity, protected health information have the meanings given such terms in section 160.103 of title 21, Code of Federal Regulations (or any successor regulations).
Consent to vaccination
Vaccinations
In general
Part I of title 18, United States Code, is amended by inserting after chapter 117 the following:
Vaccinations
Vaccinations
Requirements
In general
Except as provided in paragraph (2), it shall be unlawful to—
require any United States person to receive a vaccine that has only received authorization by the Food and Drug Administration through an emergency use authorization pursuant to section 564 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb–3), or that has received such authorization prior to receiving full approval or licensure under section 505 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355) or section 351 of the Public Health Service Act (42 U.S.C. 262); or
vaccinate with a vaccine that has only received authorization by the Food and Drug Administration through such an emergency use authorization, or that has received such authorization prior to receiving such full approval or licensure—
an individual under the age of 18; or
an individual that lacks the capacity to exercise the right to consent to be vaccinated.
Exceptions
Paragraph (1) shall not apply if the individual, or if the individual is a minor or is otherwise unable to consent, a parent, guardian, conservator, or attorney-in-fact of the individual, provides consent to be vaccinated.
Sunset
This subsection is effective beginning on the date of enactment of this section and ending on the date that is 5 years after that date.
Right To be informed
Any person that administers a vaccine for the coronavirus disease 2019 (COVID–19) shall, consistent with medical ethics and applicable informed consent laws of the State in which the vaccine is administered and any applicable Federal regulations related to informed consent laws, disclose to any individual, before the vaccine is administered, the risks associated with the vaccine so that the individual can make an informed decision.
Protecting privacy
In general
Except as provided in subparagraph (B), it shall be unlawful for any person to publicly disclose information about the COVID–19 vaccination status of an individual without the express consent of the individual if the individual provided the information to the person—
as an employee in the context of an employer-employee relationship;
as an independent contractor where the vaccination status was provided to the person to whom the contractor is providing services;
as a consumer in the context of any consumer transaction;
as a patient in order to obtain medical care or health-related services from any health care provider; or
the user of any technology application, platform, or service.
Requirements
For purposes of this subsection, an individual does not provide express consent to the disclosure of a COVID–19 vaccination status unless—
the individual agrees to the circumstances of disclosure in writing; and
the agreement is not conditioned on or contained within any other agreement.
Exception
Paragraph (1) shall not apply if the parent or guardian of the individual provides consent to the disclosure described in that subparagraph.
Criminal penalties
Whoever knowingly violates subsection (a) or (c) shall be imprisoned not more than 1 year, fined in accordance with this title, or both.
Civil penalties
Any person who receives the COVID–19 vaccination status of an individual under circumstances that would create a reasonable expectation of privacy in that status, including the circumstances listed in subparagraphs (A) through (E) of subsection (c)(1), and who either intentionally or negligently discloses that status to the public without the consent of the individual, shall be subject to a civil fine not to exceed $25,000 per disclosure or any actual damages suffered.
Preemption
This section does not annul, alter, or affect any law of any State or local government that provides a greater level of privacy than the provisions in this section.
.
Technical and conforming amendment
The table of chapters for part I of title 18, United States Code, is amended by inserting after the item relating to section 117 the following:
.
Prohibition of discrimination based on vaccination status
Nondiscrimination in employment
Definitions
In this section:
ADA terms
The terms direct threat and undue hardship have the meaning given those terms in section 101 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111).
Covered entity
The term covered entity—
has the meaning given the term respondent in section 701(n) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(n)); and
includes—
an employer, which means a person engaged in industry affecting commerce who has 15 or more employees as defined in section 701(b) of title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e(b)); and
an entity to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a)) applies.
Employee
The term employee means—
an employee (including an applicant), as defined in section 701(f) of the Civil Rights Act of 1964 (42 U.S.C. 2000e(f)); and
an employee (including an applicant) to which section 717(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16(a)) applies.
Person; commerce; industry affecting commerce
The terms person, commerce, and industry affecting commerce shall have the same meaning given such terms in section 701 of the Civil Rights Act of 1964 (42 U.S.C. 2000e).
Qualified employee
The term qualified employee means an employee or applicant who, with or without reasonable accommodation, can perform the essential functions of the employment position. For the purposes of this title, consideration shall be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.
Reasonable accommodation
The term reasonable accommodation may include—
job restructuring, modified work schedules, telework, reassignment to a vacant position, or wearing a mask or personal protective equipment; and
physical distancing for an unvaccinated individual or an unvaccinated individual wearing a mask or personal protective equipment, to the extent that the unvaccinated individual interacts with individuals who are vulnerable to COVID–19 and unvaccinated for COVID–19.
Vaccination status
The term vaccination status means—
an individual’s status based on the voluntary election to receive or not to receive a COVID–19 vaccine; and
regardless of whether someone has or has not been vaccinated against COVID–19, an individual's status with respect to having or producing proof of such vaccination in the form of a vaccine passport or other medical records that would demonstrate whether an individual has been vaccinated against COVID–19.
Discrimination prohibited
General rule
No covered entity shall discriminate against a qualified employee on the basis of vaccination status, or the qualified employee’s unwillingness or inability to present a vaccine passport or other proof of having a COVID–19 vaccine, in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
Construction
In general
As used in subsection (a), the term discriminate against a qualified employee on the basis of vaccination status includes—
limiting, segregating, or classifying an employee in a way that adversely affects the opportunities or status of such employee because of the vaccination status of such employee;
participating in a contractual or other arrangement or relationship that has the effect of subjecting a covered entity’s qualified employee based on vaccination status to the discrimination prohibited by this title (such relationship includes a relationship with an employment or referral agency, labor union, an organization providing fringe benefits to an employee of the covered entity, or an organization providing training and apprenticeship programs);
utilizing standards, criteria, or methods of administration—
that have the effect of discrimination on the basis of vaccination status; or
that perpetuate the discrimination of others who are subject to common administrative control;
excluding or otherwise denying equal benefits to a qualified employee because of the known vaccination status of an individual with whom the qualified employee is known to have a relationship or association;
not making reasonable accommodations based on vaccination status for an otherwise qualified employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity; or
denying employment opportunities to an employee who is an otherwise qualified employee based on vaccination status, if such denial is based on the need of such covered entity to make reasonable accommodation based on the vaccination status of the qualified employee; and
using qualification standards, employment tests, or other selection criteria that screen out or tend to screen out an individual or a class of individuals based on vaccination status unless the standard, test or other selection criteria, as used by the covered entity, is shown to be job related for the position in question and is consistent with business necessity.
Exclusions
Notwithstanding any other provision of this section, the term discriminate against a qualified individual on the basis of vaccination status does not include—
requiring physical distancing by or from individuals who are particularly vulnerable to COVID–19 or have not been fully vaccinated for COVID–19;
requiring a qualified employee to wear a mask or to utilize other personal protective equipment; or
conducting any symptom check as described in subsection (d)(3).
Covered entities in foreign countries
It shall not be unlawful under this section for a covered entity to take any action that constitutes discrimination under this section with respect to an employee in a workplace in a foreign country if compliance with this section would cause such covered entity to violate the law of the foreign country in which such workplace is located.
Medical examinations and inquiries
In general
Consistent with paragraph (2), the prohibition against discrimination as referred to in subsection (a) shall include medical examinations designed to reveal a qualified employee’s vaccination status and inquiries about a qualified employee’s vaccination status or reasons for choosing not to receive a COVID–19 vaccine.
Prohibited examinations and inquiries
A covered entity shall not require a medical examination designed to reveal a qualified employee’s vaccination status and shall not make inquiries of an employee as to the vaccination status of the employee or reasons for choosing not to receive a COVID–19 vaccine unless such examination or inquiry is shown to be job related and consistent with business necessity.
Symptom checks permitted
Notwithstanding any other provision of this title, a covered entity may implement basic health screenings that ask individuals if they have symptoms associated with COVID–19 as long as the covered entity does not discriminate against a qualified employee, as described in subsection (a), based on those symptoms, provided that the covered entity does not discriminate on the basis of vaccination status when taking any action in response to any symptom check.
Defenses
In general
It may be a defense to a charge of discrimination under this title that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to a qualified employee based on vaccination status has been shown to be job related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this title.
Religious entities
In general
This title shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
Religious tenets requirement
Under this title, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.
Remedies and enforcement
Employees covered by title VII of the Civil Rights Act of 1964
In general
The powers, remedies, and procedures provided in sections 705, 706, 707, 709, 710, and 711 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–4 et seq.) to the Commission, the Attorney General, or any person alleging a violation of title VII of such Act (42 U.S.C. 2000e et seq.) shall be the powers, remedies, and procedures this Act provides to the Commission, the Attorney General, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 201(3)(A) except as provided in paragraphs (2) and (3) of this subsection.
Costs and fees
The powers, remedies, and procedures provided in subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall be the powers, remedies, and procedures this Act provides to the Board or any person alleging such practice.
Damages
The powers, remedies, and procedures provided in section 1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations contained in subsection (b)(3) of such section 1977A, shall be the powers, remedies, and procedures this title provides to the Board or any person alleging such practice (not an employment practice specifically excluded from coverage under section 1977A(a)(1) of the Revised Statutes).
Employees covered by section 717 of the Civil Rights Act of 1964
In general
The powers, remedies, and procedures provided in section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16) to the Commission, the Attorney General, the Librarian of Congress, or any person alleging a violation of that section shall be the powers, remedies, and procedures this title provides to the Commission, the Attorney General, the Librarian of Congress, or any person, respectively, alleging an unlawful employment practice in violation of this title against an employee described in section 201(3)(B), except as provided in paragraphs (2) and (3) of this subsection.
Costs and fees
The powers, remedies, and procedures provided in subsections (b) and (c) of section 722 of the Revised Statutes (42 U.S.C. 1988) shall be the powers, remedies, and procedures this Act provides to the Commission, the Attorney General, the Librarian of Congress, or any person alleging such practice.
Damages
The powers, remedies, and procedures provided in section 1977A of the Revised Statutes (42 U.S.C. 1981a), including the limitations contained in subsection (b)(3) of such section 1977A, shall be the powers, remedies, and procedures this title provides to the Commission, the Attorney General, the Librarian of Congress, or any person alleging such practice (not an employment practice specifically excluded from coverage under section 1977A(a)(1) of the Revised Statutes).
Prohibition against retaliation
In general
No person shall discriminate against any employee because such employee has opposed any act or practice made unlawful by this title or because such employee made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title.
Prohibition against coercion
It shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of such individual having exercised or enjoyed, or on account of such individual having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this title.
Remedy
The remedies and procedures otherwise provided for under this section shall be available to aggrieved individuals with respect to violations of this subsection.
Limitation
Notwithstanding subsections (a)(3) and (b)(3), if an unlawful employment practice involves the provision of a reasonable accommodation pursuant to this title or regulations implementing this title, damages may not be awarded under section 1977A of the Revised Statutes (42 U.S.C. 1981a) if the covered entity demonstrates good faith efforts, in consultation with the qualified employee, to identify and make a reasonable accommodation that would provide such employee with an equally effective opportunity and would not cause an undue hardship on the operation of the covered entity.
Nondiscrimination in public accommodation
Definitions
In this subtitle:
ADA terms
The terms commerce, commercial facilities, private entity, and public accommodation have the meanings given those terms in section 301 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12181).
Individual who has not received a COVID–19 vaccine
The term individual who has not received a COVID–19 vaccine means an individual who has not received a COVID–19 vaccine or who does not have or cannot produce proof of having such a vaccine.
Vaccination status
The term vaccination status means—
an individual’s status based on the voluntary election to receive or not to receive a COVID–19 vaccine; and
regardless of whether someone has or has not been vaccinated against COVID–19, an individual's status with respect to having or producing proof of such vaccination in the form of a vaccine passport or other medical records that would demonstrate whether an individual has been vaccinated against COVID–19.
Prohibition of discrimination by places of public accommodation
General rule
Subject to the provisions of this subtitle, no individual shall be discriminated against on the basis of vaccination status, or the individual’s unwillingness or inability to present a vaccine passport or other proof of having a COVID–19 vaccine, in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
Construction
General prohibition
Activities
Denial of participation
It shall be discriminatory to subject an individual or class of individuals on the basis of the vaccination status of such individual or class of individuals, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
Participation in unequal benefit
It shall be discriminatory to afford an individual or class of individuals, on the basis of vaccination status of such individual or class of individuals, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not substantially equal to that afforded to other individuals.
Separate benefit
It shall be discriminatory to provide an individual or class of individuals, on the basis of vaccination status of such individual or class of individuals, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
Individual or class of individuals
For purposes of clauses (i) through (iii) of this subparagraph, the term individual or class of individuals refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.
Integrated settings
Goods, services, facilities, privileges, advantages, and accommodations shall be afforded to an individual regardless of vaccination status in the most integrated setting appropriate.
Opportunity to participate
Notwithstanding the existence of separate or different programs or activities provided in accordance with this section, an individual who has not received a COVID–19 vaccine shall not be denied the opportunity to participate in such programs or activities that are not separate or different.
Administrative methods
An individual or entity shall not, directly or through contractual or other arrangements, utilize standards or criteria or methods of administration—
that have the effect of discriminating on the basis of vaccination status; or
that perpetuate the discrimination of others who are subject to common administrative control.
Association
It shall be discriminatory to exclude or otherwise deny equal goods, services, facilities, privileges, advantages, accommodations, or other opportunities to an individual or entity because of the vaccination status of an individual with whom the individual or entity is known to have a relationship or association.
Specific prohibitions
Discrimination
For purposes of subsection (a), discrimination includes—
the imposition or application of eligibility criteria that screen out or tend to screen out an individual who has not had a COVID–19 vaccine or any class of such individuals from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations, unless such criteria can be shown to be necessary for the provision of the goods, services, facilities, privileges, advantages, or accommodations being offered; and
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals who have not received a COVID–19 vaccine, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.
Specific construction
Nothing in this title shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others. The term direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by physical distancing, wearing a mask, or wearing personal protective equipment.
Distancing and PPE
Notwithstanding any other provision of this section, an individual shall not be considered to be discriminated against on the basis of vaccination status in violation of this section if that individual is required to engage in physical distancing, wear a mask, or wear personal protective equipment.
Prohibition of discrimination in specified public transportation services provided by private entities
General rule
No individual shall be discriminated against on the basis of vaccination status, or the individual’s unwillingness or inability to present a vaccine passport or other proof of vaccinations status, in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.
Construction
For purposes of subsection (a), discrimination includes—
the imposition or application by an entity described in subsection (a) of eligibility criteria that screens out or tends to screen out an individual based on vaccination status or any class of individuals based on vaccination status from fully enjoying the specified public transportation services provided by the entity, unless such criteria can be shown to be necessary for the provision of the services being offered; and
the failure of such entity to make reasonable modifications, including physical distancing for an unvaccinated individual or an unvaccinated individual wearing a mask or personal protective equipment, to the extent that the unvaccinated individual interacts with individuals who are vulnerable to COVID–19 and unvaccinated for COVID–19.
Distancing and PPE
Notwithstanding any other provision of this section, an individual shall not be considered to be discriminated against on the basis of vaccination status in violation of this section if that individual is required to engage in physical distancing, wear a mask, or wear personal protective equipment.
Exemptions for private clubs and religious organizations
The provisions of this subtitle shall not apply to private clubs or establishments exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000–a(e)) or to religious organizations or entities controlled by religious organizations, including places of worship.
Enforcement
Availability of remedies and procedures
The remedies and procedures set forth in section 204(a) of the Civil Rights Act of 1964 (42 U.S.C. 2000a–3(a)) are the remedies and procedures this subtitle provides to any person who is being subjected to discrimination on the basis of vaccination status in violation of this subtitle or who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of this subtitle. Nothing in this section shall require a person who has not received a COVID–19 vaccine to engage in a futile gesture if such person has actual notice that a person or organization covered by this subtitle does not intend to comply with its provisions.
Enforcement by the attorney general
Denial of rights
Authority to investigate
The Attorney General shall have the authority to investigate alleged violations of this subtitle, and shall undertake periodic reviews of compliance of entities subject to this subtitle.
Potential violation
If the Attorney General has reasonable cause to believe that—
any person or group of persons is engaged in a pattern or practice of discrimination under this subtitle; or
any person or group of persons has been discriminated against under this subtitle and such discrimination raises an issue of general public importance;
Authority of court
In a civil action under paragraph (1)(B), the court—
may grant any equitable relief that such court considers to be appropriate, including, to the extent required by this subtitle—
granting temporary, preliminary, or permanent relief;
providing a modification of policy, practice, or procedure, or alternative method; and
making reasonable accommodations for individuals who have not received a COVID–19 vaccine;
may award such other relief as the court considers to be appropriate, including monetary damages to individuals aggrieved when requested by the Attorney General; and
may, to vindicate the public interest, assess a civil penalty against the entity subject to this subtitle in an amount—
not exceeding $50,000 for a first violation; and
not exceeding $100,000 for any subsequent violation.
Single violation
For purposes of paragraph (2)(C), in determining whether a first or subsequent violation has occurred, a determination in a single action, by judgment or settlement, that the entity subject to this subtitle has engaged in more than one discriminatory act shall be counted as a single violation.
Punitive damages
For purposes of paragraph (2)(B), the term monetary damages and such other relief
does not include punitive damages.
Judicial consideration
In a civil action under paragraph (1)(B), the court, when considering what amount of civil penalty, if any, is appropriate, shall give consideration to any good faith effort or attempt to comply with this Act by the entity. In evaluating good faith, the court shall consider, among other factors it deems relevant, whether the entity could have reasonably anticipated the need for a reasonable accommodation for individuals who have not received a COVID–19 vaccine.
Effective date
This subtitle shall become effective 90 days after the date of the enactment of this Act.
Nondiscrimination by a public entity and access to Federal services
Nondiscrimination by a public entity
In general
Subject to the provisions of this subtitle, no qualified individual who has not received a COVID–19 vaccine shall, by reason of such vaccination status, including the qualified individual’s unwillingness or inability to present a vaccine passport or other proof of having a COVID–19 vaccine, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
Right To vote shall not be impaired
It shall be unlawful for any State or political subdivision, as such term is used in the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.), to require or impose a requirement that a voter or voters must present a vaccine passport or otherwise present information regarding their vaccination status in order to exercise the right to vote, including to vote in person, in any election involving any candidate for Federal office.
Rule of construction
Notwithstanding subsection (a), a public entity shall not be considered in violation of subsection (a) if that public entity requires a qualified individual who has not received a COVID–19 vaccine to engage in physical distancing, wear a mask, or wear personal protective equipment.
Enforcement
The remedies, procedures, and rights set forth in section 505 of the Rehabilitation Act of 1973 (29 U.S.C. 794a) shall be the remedies, procedures, and rights this title provides to any person alleging discrimination on the basis of status as a qualified individual who has not received a COVID–19 vaccine in violation of this section.
Definitions
Qualified individual who has not received a COVID–19 vaccine
The term qualified individual who has not received a COVID–19 vaccine means an individual who—
has voluntarily elected not to receive a COVID–19 vaccine; and
with or without reasonable modifications to rules, policies, or practices, including physical distancing, mask wearing, wearing personal protective equipment, or undergoing a COVID-related symptom check meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Public entity
The term public entity has the meaning given that term in section 201 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131).
Access to Federal services
Federal services
In General
No otherwise qualified individual who has not received a COVID–19 vaccine, shall, solely by reason of her or his vaccine status, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
Regulations
The head of each such agency shall promulgate such regulations as may be necessary to carry out this section.
Program or activity
In this section the term program or activity has the meaning given that term in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).
Petition; access to property
An individual's right to petition the Federal Government and an individual's right to access Federal property shall not be affected because the individual is a qualified individual who has not received a COVID–19 vaccine. Proof of COVID–19 vaccination shall not be a requirement for access to Federal property or Federal services, or for access to congressional grounds or services.
Exception relating to admission and departure of aliens
In general
Notwithstanding any other provision of this Act, the Secretary of Homeland Security may request, require, and collect vaccination records providing evidence of vaccination for COVID–19, SARS–CoV–2, or any variant of COVID–19 or SARS–CoV–2 from any alien (as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) seeking admission to the United States or departing the United States, to the extent necessary to ensure public health.
Recordkeeping
The Secretary of Homeland Security may maintain such evidence of vaccination and any ancillary documentation for a period the Secretary considers necessary.
Privacy
Information collected or maintained under paragraph (1) or (2) may not be transmitted or communicated to any entity or individual other than an employee of the Department of Homeland Security designated by the Secretary of Homeland Security.
Rule of construction
Nothing in this subsection shall be construed to provide an alien a right or an enforceable action relating to the admission of the alien to the United States or authorization to remain in the United States.
