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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.
Conclusion
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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