April 2021 Issue 440

The Latest in Road Running for Race Directors and Industry Professionals

Are Mandatory Vaccines and Pre-Race Testing the Ticket to In-Person Racing?

Mitigation Requirements Present Challenges for Race Directors*

By Heidi Abegg

* This article is provided for informational purposes only, and the information and materials contained herein are not intended to and do not constitute legal advice or the formation of an attorney-client relationship. The information provided may not apply to your particular facts or circumstances; accordingly, you should seek legal counsel concerning your particular issues from a licensed attorney.

Spring has officially arrived, vaccination rates are increasing, and runners are eager to return to in-person races. Additionally, some states and local jurisdictions have relaxed their COVID-19 restrictions, permitting not only athletic competitions but also spectators. Earlier this month, the Texas Rangers played their opener before an in-person crowd of 38,238 people. In some areas of the country and in parts of the world, however, COVID cases, including those involving variants, are increasing, and vaccines aren’t yet fully available to anyone who wants one. This has left a wide variety of rules, regulations, and guidelines applicable to reopening, both across the country and across sports.

According to Centers for Disease Control and Prevention ("CDC") statistics, 26.4% of Americans have been fully vaccinated, and the CDC has issued new guidance for fully vaccinated people, expanding permissible activities. As a result, vaccine “passports” have been in the news as a potential solution to fast-tracking reopening. Vaccine “passports” are digital certificates to prove vaccination status or negative COVID tests through a QR code/phone app so that an individual does not need to carry around a paper card. These digital certifications are a more secure and reliable way to determine who has been vaccinated or received a negative test than vaccine cards, which are easily forged and available for purchase on the internet. The World Health Organization (“WHO”), which previously developed yellow fever vaccination cards, is developing a framework for coronavirus vaccination certificates. Although seen as an easy way to safely reopen, vaccine “passports” have triggered a backlash due to their connotations of "Big Brother," and detractors have decried the “passport” as raising security, ethical, discrimination, privacy and liberty concerns. The issue has begun to divide the states.

Support for Vaccine Mandates Varies Widely by State

There are almost 20 entities developing apps to be used to show vaccination status. New York is promoting one such app (New York State Excelsior Pass) developed by IBM, which confirms an individual’s negative test or proof of vaccination. On the other end of the spectrum, Texas Governor Greg Abbott recently issued an executive order preventing government agencies from requiring proof of vaccination and barring them from issuing any “standardized documentation for the purpose of certifying an individual’s COVID-19 vaccination status to a third party.” Florida Governor Ron DeSantis went a step further and issued an executive order forbidding private businesses from requiring proof of vaccination prior to entrance. It is possible that states may override efforts to require vaccination by enacting laws barring discrimination based on vaccine status. [Editor’s note: The ACLU’s stance on potential privacy concerns about vaccine passports appears here.]

Meanwhile, private entities are looking at vaccines as a way to fast-track reopening. The American Queen Steamboat Company and Crystal Cruises are requiring vaccines of all guests and passengers. Rutgers University has announced that all students returning this Fall must be vaccinated unless they have a medical or religious reason. Some venues, like the Miami Heat, have special sections for vaccinated fans. New York’s Madison Square Garden requires visitors to show proof of vaccine or a negative test, including using the NYS Excelsior Pass (tests are also available onsite).  

Vaccine Requirements at Races

Race organizers are also implementing vaccination requirements or a negative COVID test prior to competition. For their races this month, the Glass City Marathon in Toledo, OH, is requiring runners to have been vaccinated at least two weeks prior to the race or provide proof of a negative COVID test no more than 72 hours prior to the race. As of March 29, 2021, the Boston Marathon has told participants in the in-person race that they may be expected to produce up to two negative COVID tests, regardless of vaccination status, but that more information will follow in the coming months. The organizers of the Olympics have already said that vaccines will not be mandatory for athletes; some countries have received very few vaccines and even in others, athletes are not in priority groups. Nor are vaccines likely to be made mandatory by the U.S. Government; the Biden Administration said on March 29 that there will be no federal vaccine mandate.

Races considering a return to in-person running based upon proof of vaccination should understand that there are no clear answers at this time as to whether they can mandate vaccinations as a pre-requisite for entering. As indicated above, Florida clearly has an issue with it; New York State does not. Mandatory vaccines are more likely to be legal for a private event on private property, since generally private entities can refuse to employ or do business with whomever they wish, subject to exceptions that at this point do not include vaccination status. However, given the response of Texas and Florida, race organizers should carefully monitor developments in their jurisdiction. For races that choose to require proof of vaccination, there may be less likelihood of a legal challenge if a negative COVID test is permitted as an alternative to vaccination. Permitting satisfaction of either proof of vaccination or a negative COVID test would also allow elite runners from countries where vaccines are not yet available to compete (assuming travel restrictions can be met).  Mandatory vaccination is also more likely to be upheld if there are exemptions for medical reasons (including under the Americans with Disabilities Act) and for sincerely held religious beliefs.

Races requiring proof of vaccination should consider how they will obtain certification of vaccination and/or negative tests and clearly communicate the requirements to applicants. For example, the Glass City Marathon has instituted a cutoff deadline for each of the three vaccines, and runners are required to show a photo ID and a paper or digital copy of the CDC vaccination card dated prior to the cutoff deadline in order to receive a race bib. Alternatively, runners may show negative results from a rapid or PCR test taken, and results received, within 72 hours of packet pickup. A waiver and pre-race COVID screening form is also required. [Editor's Note: Waivers are not enforceable in every state. For example, Virginia generally does not enforce waivers. In those states, an assumption of risk form is generally advised.]

Races requiring negative test results should provide helpful information regarding testing locations, and they may also want to consider whether to offer on-site testing during packet pickup. Races that want to encourage runners to get vaccinated could consider offering freebies or discounts. All types of businesses have been offering free food, discounts, and other incentives if proof of vaccination can be shown.

Mitigation Requirements May Present a Quandary

There is a wide variety of rules, restrictions, and guidelines across the country and across sports. Races need to follow the COVID safety and health protocols in their particular jurisdiction, paying careful attention to which mitigation measures are required and which are simply guidelines. For example, some jurisdictions have put out guidelines for running events that discourage the distribution of water. As a result, some races have told runners to bring their own hydration and carry it with them. Complying with these COVID mitigation “guidelines” will not absolve a race from all claims of negligence (see Sidebar). Races are still liable for negligent conduct unrelated to COVID-19, such as failing to provide water or medical attention, weather-related decisions, safety aspects of the course, and the like.

Unless your jurisdiction prohibits it, races can safely provide water stations. Like other sports, races can offer individually packaged water and food, have volunteers wear N95 masks and gloves, and require that runners pick up their own water rather than have it handed to them. In that case, the risk of a water station is not much different than dining al fresco or ordering a coffee from your favorite provider. Getting rid of water stations during the race for 5K races and under and only providing water at the finish is another option for shorter races.

Depending on the jurisdiction, races might be able to take advantage of one of the liability protection laws enacted in thirty-six states so far. While some of these laws offer protection only to health care workers and manufacturers of personal protective equipment, some extend protection from liability from COVID-19 negligence claims to private businesses that operate in substantial compliance with applicable laws and health mandates and guidelines. Should you wish to offer on-site race COVID testing, some of these laws may provide protection for those activities as well.

COVID mitigation measures, requirements, and government responses are still very much a moving target. COVID vaccinations may become the lynchpin of the country’s reopening, but for now they are still just one part of a re-opening plan. Race organizers need to remain flexible and monitor developments as they institute plans for in-person races. The experience of other races, sports competitions, and private entities will provide helpful and useful information and should not be overlooked.

COVID Surcharges

The additional protocols required for COVID mitigation increases costs. As of April 7, 2021 the Boston Marathon has stated that there will be an additional fee of $25 for all entrants to support efforts to mitigate the spread of COVID-19. Races could likewise consider adding an additional fee to cover their increased costs or lost entry fee income from reduced field size due to COVID mitigation measures.


Complying with COVID mitigation measures doesn't eliminate the need to otherwise meet the usual duty of care.  It just adds another layer of complexity and another possible grounds for a lawsuit.  If there is a liability protection law that covers private businesses, at least the race can take steps to fall under the protection of that law and avoid a COVID lawsuit.

Heidi Abegg is Senior Counsel at Webster, Chamberlain & Bean in Washington, DC, where she represents non-profits habegg@wc-b.com.

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