Iowa has joined the group of states outlawing so-called “vaccine passports”. On May 20 Governor Reynolds signed House File 889. Among other things, the law prevents most Iowa businesses and nonprofit entities from requiring a group of individuals including “other persons” to present or furnish proof of having received a vaccination for COVID-19 prior to entering “on the premises” of the entity. The law also states that it is not intended to prohibit an entity from implementing a COVID-19 screening protocol that does not require proof of vaccination. The law is silent with regard to vaccine mandates. The law took effect upon enactment. The operative provision reads:

“Notwithstanding any provision of law to the contrary, a business or governmental entity shall not require a customer, patron, client, patient, or other person who is invited onto the premises of the business or governmental entity to furnish proof of having received a vaccination for COVID-19, as defined in Section 686D.2, prior to entering onto the premises of the business or governmental entity. This section does not prohibit a business or governmental entity from implementing a COVID-19 screening protocol that does not require proof of vaccination for COVID-19.”

The definitional provisions in the law are somewhat opaque but arguably provide that most institutions of higher education and private K-12 schools would be covered by the law and that the law would theoretically apply to students and visitors.

The law’s sponsors, as well as business and legislative leaders, have publicly stated that they believe the law only outlaws vaccine passports and otherwise does not interfere with the operations of Iowa businesses and nonprofits. Nevertheless, the vaccine passport law contains several ambiguous provisions that may create legal concerns for Iowa businesses, nonprofits, schools and public accommodations. The law is intended to mirror executive orders issued and laws in other states.

The Iowa Association of Business and Industry (ABI), Iowa’s largest business interest group, provided useful comments to the Iowa House Committee analyzing the bill. The comments included concerns that Iowa companies with operations or sales abroad could be at a disadvantage if foreign governments required a vaccine identification document for entry because it presently falls to states to provide such documents. At this time proof of a negative PCR test or a positive antibody test is required for international travel to some locations. Individuals, including employees who choose not to provide such information, will be barred from entry.

Concerns were also raised about the phrase “other persons invited onto the premises of the business” and whether the phrase included an employee of the premise’s owner. Legislative staff assured lobbyists that this language was carefully considered by the House, Senate and Governor’s office drafters to exclude employees.

The drafters of the bill have made public statements indicating the bill excludes employees of nongovernmental entities. Thus, legislators believe the bill allows Iowa employers to mandate vaccinations and passports for employees. There are reasons to question the validity of that belief. The scope of the actual language used in the law is uncertain. Businesses and nonprofits should be especially cognizant of the fact that the law’s use of the term “invited” is problematic. That term can be interpreted to include employees based upon the traditional legal definition of “invitee” which Black’s Law Dictionary defines as follows:

A person is an “invitee” on land of another if (1) he enters by invitation, express or implied, (2) his entry is connected with the owner’s business or with an activity the owner conducts or permits to be conducted on his land and (3) there is mutuality of benefit or benefit to the owner, Madrazo v. Michaels, 1 Ill. App.2d 583, 274 N.E. 2d 635, 638.

The Iowa Court of Appeals has also held that an employee is an “invitee” for common law purposes. Thus, the law contains language that arguably applies not simply to students, patrons or visitors, but also to employees. See Maxine Coleman v. Larry Monson, 522 N.W.2d 91 (1994).

On its face, the vaccine passport law prohibits only the use of identification cards. It does not expressly state that a vaccination mandate is prohibited. Some may argue that the law could be interpreted to more broadly prohibit mandating vaccines altogether. On the other hand, the law can be read in a manner that clearly makes it inapplicable to certain individuals such as students. The law applies to persons “invited onto the premises.” Following a year of pandemic, many institutions are moving to return to live instruction. Still, hybrid and remote learning models are pervasive. This backdrop leads to any easy way to avoid the potential unintended effect of the law. Private schools can make it clear that a student who fails to follow a pre-enrollment vaccine protocol will not be “invited onto the premises.” Thus, the law should not apply.

The law will undoubtedly create collateral issues as it relates to employee and student travel and athletic and other events as it appears to conflict with international and some federal requirements. Iowa businesses and schools will be forced to deal with those issues in the future.

There are also potential constitutional issues associated with the law. As written, if given a broad interpretation, the law applies to churches and private clubs. As such, it almost certainly violates the First Amendment Establishment and Association clauses.

The religious setting is the easiest to analyze. While many governmental leaders issued lockdown orders limiting attendance at religious services, those orders were temporary and they emanated from the general police power to ensure health and safety of the public. Even so, the United States Supreme Court has been striking them down at a dizzying pace. There is simply no question that an attempt by a state to mandate what a religious institution can and cannot require of adherents would be blatantly unconstitutional.

The same can be argued for private clubs. Many private clubs require members to be in possession of identification cards to attend a meeting. The drafter of the bill may have been thinking of health clubs when they wrote the law, but they arguably cast a much broader net. As written, the law would arguably prevent the Knights of Columbus from requiring not only a membership card at the opening of a council meeting, as is common practice, but also showing proof of vaccination. Again, this is clearly unconstitutional. (Boy Scouts of America v. Dale, 530 U.S. 640, 655 - 56 (2000). If a private club can limit membership to those of a certain sex or religion, they can certainly limit membership to vaccinated persons – and they can enforce the requirement as they see fit without governmental interference.

It remains to be seen how broadly the law will be interpreted. In the meantime, Iowa entities should consult legal counsel when navigating the provisions of this curious law.