To some it’s a matter of principle; to others, a question of client confidentiality. Travel advisors are split on whether to mandate vaccines for their clients – but no matter your position, the lawyers say, get a waiver absolving you of responsibility should someone fall ill.
But first things first: Can travel advisors legally mandate that their clients be vaccinated?
“The short answer is yes they can,” says Jeff Tenenbaum, managing partner at Tenenbaum Law Group PLLC in Washington DC, who consults with many not-for-profit organizations about their meetings and events.
When it comes to mandatory vaccinations, federal law offers some protections in an employment setting – but not in the context of meetings, events and travel where employees are not involved, Tenenbaum says. “So if a travel agency wants to say that customers have to be fully covid vaccinated, it can do that without any exceptions.”
The only caveat is a “handful of states,” most notably Florida and Texas, that have banned the use of “vaccine passports” and thereby essentially banned proof of vaccination as a condition of entering your business. In these states it is illegal to require proof of vaccination — but you still can require people to self-attest. And even in a state that has these requirements, Tenenbaum says, “the law appears to be written to apply to actual physical venues; I don’t believe it would apply to a travel agency.”
Choosing a Path
For the travel advisors with whom we spoke, the letter of the law is not really the deciding factor. Their policies run the gamut from laissez-fare, to encouraging vaccines, to mandating them outright.
With a group of 60 customers, about 60% of whom are vaccinated, headed to Hawaii, Cruise Planners franchise owner Jeff Page “pretty much shared the link to the Hawaii Safe Travel website and told them they were on their own,” he says. “There are too many moving parts to keep up with a group that size. I told them to be careful to follow the directions. I was available for questions but did not give a lot of yes or no answers.”
Toni Day of Adventures with Toni Tours on Long Island is in the middle, encouraging vaccinations but allowing exceptions. She has 16 clients sailing on Paul Gauguin in October and 32 on Grandeur of the Seas in February—and while as of now both ships mandate vaccines, she wants to be covered in case that changes. “I told them that if they are not vaccinated they will not be able to participate in our private group activities on board or our private group shore excursions, and they will need to book private transfers.”
So far, everyone who has signed up is vaccinated. Indeed, “my clients actually liked the idea of a group vaccine bubble,” she says.
On the far end of the scale, Philip Archer of Roaming Richly Travel in San Francisco is “only doing groups for fully vaccinated persons willing to also test before departure. PERIOD. No discussion. And we have not had a single objection – in fact our hosted trips have all been getting new referrals and are growing. (Our Douro trip added two new cabins last week.)”
Archer believes his diverse client base of travelers from the Bay Area, Sun Valley, Chicago, Dallas, and the Jackson, MS area “want to travel in a bubble of like-minded vaccinated others,” he says. “We are focused on making travel accessible to those who want to do it responsibly and in the safest manner possible.”
When in Rome
Of course travel advisors do not have the final word these days; the hotels you use and the ships you sail have their own requirements for your travelers.
“Generally speaking, all of those venues have great flexibility to mandate whatever they want,” says Tenenbaum.
And so for many travel advisors, the easiest answer is just to follow the rules set by the destination.
“If the country lets them in, I’m not making up my own rules for my group,” says Carol Rowland at Recess 4 Grownups in Atlanta. “Italy lets folks in with vaccination card or negative PCR test, and if Italy lets them in, they are on the trip.”
“I think refusing to book clients based on vaccination status is overstepping our bounds,” agrees Vicki Watkins Briggs at Briggs World Travel in Woodbridge, VA. “I give them the details effective at time of booking and tell them everything is subject to change, and also provide them with websites such as the CDC and State Department.”
But Travel on a Dream owner Tracy Whipple disagrees. Taking no chances, she asked everyone on her Alaska trip this month about their vaccination status, and even after they replied, still is requiring a negative test result before the trip. And a release. “And I will have an evacuation plan should someone get sick on the trip,” she says.
Keeping Things Close to the Vest
Some who push for everyone to be vaccinated still allow for exceptions in some circumstances. For a destination wedding group of 36, for example, Arleta Cosby at Cosby Travel Consultants allowed one guest with medical issues and one who simply refused to be vaccinated to attend. While the bride and groom knew that the two were not vaccinated, Cosby did not share that information with others in the group.
“As a travel professional, I will not disclose someone’s medical status to another traveler, as I feel that is a breach of confidential information,” she says.
But at the Grimes Law Offices, LLC, in Philadelphia, Josh Grimes cautions about sharing vaccination information. “There may be privacy concerns associated with telling others in a group about a person’s vaccination status, even if their name isn’t mentioned. If an advisor is going to do that, it’s best to have the client sign a disclosure authorization beforehand. And if the advisor or the clients are subject to the European GDPR law, or the privacy laws of other countries, there may be restrictions on disclosing that information,” he notes.
With about $4 million in sales from 43 groups in 2021, Suzanne Haire of All Travel Company has been “asking the group leaders to disclose to the entirety of the guest list in our private Facebook Groups that not all passengers are vaccinated, nor are all other travelers in the area to which they will be traveling. Then I put in social distancing and mask wearing and the tips for practicing safety while traveling as a follow up.”
Haire further advises everyone “that requirements are subject to change at any time and that if they have in fact been fully vaccinated, it would be in their best interest to have the vaccination card available as proof, so please put it somewhere safe in case protocols require it in the future. I also advise them to be ready and aware that testing requirements have changed rapidly over the past year and a half – so just because today’s protocol is ABC, tomorrow’s might be 123. And there is rarely a lot of notice.”
Stephanie Schneiderman at Tia Stephanie Tours uses an honor system, requiring all clients to attest in writing that they are vaccinated and agree to adhere to local protocols.
But Maxine Ezra sees the question as a moral issue for travel advisors.
“I am not booking travel for anyone who is not fully vaccinated, and all my international travelers must have medical insurance,” she says. “I personally feel [that acting otherwise] is irresponsible, as it causes me to be complicit in spreading this virus. In addition, I feel liability increases when the unvaccinated travel.”
Two Legal Issues to Consider
Tenenbaum notes two legal issues that travel advisors should keep in mind: traveling with employees and liability waivers.
When employees come along on a group trip, the travel agency is obligated to make “reasonable exceptions” for those who have a medical condition or hold religious beliefs that prohibit vaccination.
“You can still mandate that everyone be vaccinated, but you have to make exceptions,” including allowing employees in these categories to wear a mask and socially distance instead, he says.
The number-one thing to keep in mind is that “this stuff is changing rapidly, so keep an eye on the laws and regulations up to the last minute. I review a lot of policies for meetings and not-for-profits and one thing we’ve been putting in is that all this is subject to change. “
The good news is that while there has been quite a bit of litigation around covid in the context of large companies, Tenenbaum is not aware of any on the meetings and travel front, “though these are not always widely reported.”
Still, he notes, “we do know there are risks – and there are lawyers whose job is to find places where class action suits are possible.”
The best defense is a liability waiver, which “basically says they understand that covid is a very risky virus and agree to abide by all the rules and conditions that the meeting organizer is putting into place,” Tenenbaum says. “It’s kind of a no-brainer for any travel organizer to build in a liability waiver — and I absolutely would do it for any small group.”
(And taking that hint, I’ll just say that I do not intend to be offering legal advice; please discuss these issues with an attorney of your choosing.)
Editors Note: This article was edited after publication to clarify the role of HIPAA regarding vaccinations.
Cheryl’s 40-year career in journalism is bookended by roles in the travel industry, including Executive Editor of Business Travel News in the 1990s, and recently, Editor in Chief of Travel Market Report and admin of Cheryl Rosen’s Group for Travel Professionals, a news and support group on Facebook.
As an independent contractor since retiring from the 9-to-5 to travel more, she has written regular articles about the life and business of travel agents for Luxury Travel Advisor, Travel Agent and Insider Travel Report. She also writes and edits for professional publications in the financial services, business and technology sectors.