Retail Supplier Opposes Unprecedented Proposal That Conditions Resumption Of Door-to-Door, Other In-Person Sales On All Sales Agents Being Vaccinated

Raises HIPAA Compliance Issues

June 29, 2021

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Reporting by Paul Ring • ring@energychoicematters.com

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Energy Harbor LLC opposed a proposal from Staff of the Illinois Commerce Commission that would allow all forms of in-person marketing to resume, but with the condition that all sales agents be fully vaccinated against the COVID-19 virus

Staff's proposal for allowing full resumption of in-person sales, subject to the vaccine requirement and other conditions, had been exclusively first reported by EnergyChoiceMatters.com

Energy Harbor said in comments to the ICC that Staff's proposal requiring that all supplier employees, sales agents, or representatives engaged in in-person solicitation must be fully vaccinated against the COVID-19 virus, "is without precedent and is not appropriate, as it would give rise to other unforeseen issues that Energy Harbor -- and likely other ARES -- would encounter."

Aside from this proposed condition, Energy Harbor otherwise supported Staff's proposal regarding the resumption of all in-person sales

"[I]mposing such a [vaccination] condition upon ARES is without precedent. There is no precedent in the industry for requiring agents to be vaccinated and requiring that ARES such as Energy Harbor must obtain and retain proof of such vaccination—i.e., a vaccination card. For example, several other states that have lifted their moratoriums on in-person solicitations by retail suppliers did not impose a vaccination requirement as a condition of participating in re-opening.2 Even in the State of Illinois, there is no precedent for imposing this requirement. Indeed, the Commission did not impose such a requirement when it recently allowed ARES to resume in-store marketing and enrollments in open Illinois retail locations and in-person appointments with non-residential customers. (See Fifth Interim Order, p. 5 (April 15, 2021)). Similarly, other in-home personnel such as plumbers, electricians, cable television or other telecommunications installers, and the like have not been required to provide proof of vaccination, nor have restaurant workers or other retail staff that are directly customer facing and encounter consumers in-person on a daily basis," Energy Harbor said

"Likewise, imposing such a condition upon ARES is not appropriate, and would give rise to other unforeseen issues that Energy Harbor -- and likely other ARES -- would encounter. For example, imposing such a requirement would undoubtedly entangle ARES in the complexities of HIPAA compliance, requiring ARES and their technology or sales partners to ensure they are HIPAA compliant. This is a compliance issue that Energy Harbor, as an ARES in the State of Illinois, has never had to concern itself with. Because HIPAA compliance has never been a condition of ARES licensure in the State of Illinois, it should not be a requirement for licensed ARES to participate in in-person solicitations upon the commencement of Phase 5 of Restore Illinois," Energy Harbor said

"[E]nforcement of this condition of reopening would be a near impossible task for the Commission to undertake and imposing such a condition upon ARES would only further delay ARES agents from being able to again earn a living and would slow the economic growth that the State of Illinois is seeking to further by reopening. As the Commission recently stated in its Fifth Interim Order, allowing 'for ARES to conduct in-store marketing in kiosks and certain appointment-based non-residential marketing will help restart the economy and put many sales agents back into the workforce to support themselves and their families. It is reasonable and in the public interest to allow ARES to conduct in-store marketing and enrollments in open Illinois retail locations as well as in-person appointments with non-residential customers.' (Fifth Interim Order, p. 5). By allowing in-person solicitations upon commencement of Phase 5 to resume, but then imposing a vaccination requirement upon sales agents and a proof of vaccination requirement upon ARES, the Commission would be contradicting its own previous orders," Energy Harbor said

Docket No. 20-0310

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