Proof Of Vaccination Status In Many States Illogical, But Probably Not Illegal; If “No Shoes, No Shirt, No Service” is OK; Why Not “No Vaccine, No Service”?
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The Proof Of Covid Vaccination Requirement
WASHINGTON, D.C. (May 24, 2021) - With a growing number of cruise lines, airline flights, sports and entertainment venues, universities, and even other places of public accommodation such as restaurants requiring proof of COVID vaccination for admission, or to at least avoid various restrictions and limitations, some wonder whether such requirements by private entities are legal; and, indeed, if a failure to adopt such requirements, especially once most of the population is vaccinated, might make the businesses legally liable for negligence if an employee or customer becomes infected as a result.
A related question is whether the laws (including executive orders) in a growing number of states which restrict business from requiring proof of vaccination status (often called "vaccine passports"), are legal and logical, suggests public interest law professor John Banzhaf.
So it certainly makes sense, especially once most Americans are vaccinated, to restrict entry or participation to those who have been vaccinated in order to slash the risk of infection by a deadly virus to employees who must work around them, as well as to other patrons, passengers, customers, students, etc.
Indeed, since the law say that businesses are "negligent" if they fail to take reasonable precautions to prevent or mitigate any reasonably foreseeable risk, a failure to adopt reasonable restrictions on the minority of persons most likely to spread the deadly disease to others could give rise to negligence law suits, suggests Prof. Banzhaf.
He teaches the law of negligence, and has been called "The Law Professor Who Masterminded Litigation Against the Tobacco Industry," and "a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars."
Private Businesses Are Permitted To Adopt Any Requirements
Generally, under our free enterprise system, private businesses are not bound by the Constitution, and are permitted to adopt any requirements they wish, provided they do not have the purpose or effect of discriminating against certain classes of persons based upon factors such as race, gender, etc.
Since COVID vaccinations are readily available free of charge to all adults (and eventually to all children), this one limited exception to the general rule should not apply here, argues Banzhaf.
Indeed, since certain vaccinations have long been required for some forms of travel, and for entry to universities and K-12 schools, requiring proof of COVID vaccination status would seem to be legal, he says.
This is further proof - and a simple example demonstrating - that HIPPA does not prevent businesses from asking about or seeking proof of a person's vaccination status, and the federal statute certainly does not prohibit a person from revealing whether or not he has been vaccinated, and presenting proof of that vaccination when requested.
Moreover, to survive legal attack, rules by private entities need not be backed up by scientific evidence - or even make much common sense - in order to be legal, Banzhaf says.
So, for example, many restaurants require patrons to wear shoes and shirts in order to be served, even though the public health basis for such a rule is dubious in many situations.
Restaurants also may require men to wear ties, and some businesses require employees not to engage in sex outside of marriage, even though many might argue that such requirements make little sense today, and are hardly justified by any evidence, he suggests.
Thus, if restaurants can mandate "No Shoes, No Shirt, No Service," why not a "No Vaccine, No Service" requirement?
Legality Of Laws And Executive Orders
On the other hand, laws or even executive orders which seek to prevent businesses in a state from imposing restrictions or requirements based upon vaccination status are probably legal, says Banzhaf.
Unless it infringes upon a fundamental right or discriminates on the basis of race or similar factors, a law will not be struck down as unconstitutional if its defenders can advance in its support any "rational basis" for it.
While many judges might be dubious of the explanations offered for such laws, and there may be little if any evidence to back them up, it would be hard to argue that all such proffered purposes are completely arbitrary, suggests Banzhaf.
On the other hand, such laws would seem to be misguided since, as some constitutional scholars have argued, governments might be constitutionally required to exempt people who have been vaccinated from many pandemic-related government-imposed restrictions, especially those involving fundamental rights such as travel, or those protected by the First Amendment (worshiping, attending rallies or political events, etc.).
Banzhaf explains that while courts have generally upheld COVID-related government-imposed limits on travel - and even on some First Amendment activities - because the extreme risks of spreading and/or contracting the disease were seen as warranting at least temporary restrictions on important rights, things may soon be very different legally since the balance of rights vs. risks would have completely changed for Americans who have been vaccinated.
Any law, regulation, executive order, or similar governmental edict which impinges of a fundamental right must - to withstand constitutional scrutiny, and invalidation by a judge in a court challenge - be proven to serve a "compelling governmental interest" and be the "least restrictive alternative" which is available.
Preventing The Spread Of Covid
Preventing the spread of a virus which - at least to vaccinated citizens - is many times less dangerous than the common flu (as to which traditionally no restrictions have been imposed on adults) is hardly a compelling governmental interest justifying the curtailment of fundamental rights, argues Banzhaf.
Even more important, he suggests, is that limiting the activities of all adults, to prevent the spread of COVID from only a few, is hardly the least restrictive means available.
Far less restrictive of these important rights, and virtually as effective, would be to impose the restrictions only on those in the minority who are not vaccinated, and allow those not at risk - to themselves or to others - to be exempt from the government restrictions.
As Prof. Somin explains: "This reasoning should lead to the invalidation of the application of Covid restrictions to the vaccinated in any situation where those measures restrict a right subject to heightened scrutiny, whether it be freedom of speech and assembly, freedom of religion, or the right to travel. All three have at times been severely constrained during the pandemic, and courts have often upheld the constraints based on the the severe threat posed by Covid. That threat is now vastly reduced by vaccination."
So, concludes Banzhaf, governments probably should not prohibit private businesses from doing what the government itself should be doing; providing exemptions and special treatment for those who can show, by whatever means, that they have been fully vaccinated.
