Why Private Businesses Can Ask for Proof of Vaccination

Businesses asking for proof of vaccination for customers to enter and employees to work in the building is becoming extremely common and highly politicized. Currently, Governor Ron DeSantis of Florida is attempting to ban private businesses from mandating vaccines. These efforts come after DeSantis’s April ban on private businesses asking for proof of vaccination from customers. Texas and Alabama have also attempted to ban proof of vaccination mandates in their states, and in late October, hundreds of New Yorkers protested vaccine mandates. Unfortunately for these protesters, their arguments hold little weight in the court of law. 

Several lawsuits against mandating the COVID-19 vaccine have previously been raised but nearly all have failed. The lawsuits' failures are largely due to the Supreme Court Case Jacobson v. Massachusetts (1905), which allowed states to mandate the smallpox vaccine. The case found: “It is within the police power of a State to enact a compulsory vaccination law, and it is for the legislature, and not for the courts, to determine.” Thus, Americans do not have a constitutional right to refuse vaccine mandates given by the state or federal government. 

The federal branch also has precedent in enforcing vaccine mandates. The U.S. Equal Employment Opportunity Commission allows businesses to ask for proof of vaccination; it also permits employee vaccination mandates because of the commission’s precedent with the flu vaccine: employers can mandate and ask for proof of flu shots, so they can ask about COVID-19 vaccination status. Of course, there are exceptions to the vaccine mandates through the commission, such as those with disabilities or religious reservations, but these members are still subject to questions of vaccination status. However, their reasons for being unvaccinated protect them from being fired. Other individuals, however, are fair game to be fired if not compliant because they are not protected by the U.S. Equal Employment Opportunity Commission. 

Additionally, contrary to common beliefs, the Health Insurance Portability and Accountability Act of 1996, or “HIPAA,” does not protect employees from questions about vaccination status. According to a Harvard Health Publisher, Robert H. Shmerling, “HIPAA privacy rules do not prevent you from answering questions about whether you’ve been vaccinated.” A person can refuse to answer, but refusal to answer may be as telling as answering the vaccination status question in the negative. HIPAA allows vaccine-related questions despite its privacy clause because the privacy terms protect individuals from medical practitioners sharing private health information with others. It does not specify whether questions regarding vaccination status are prohibited.

Another interesting development is underway with HIPAA and COVID-19. In a Vermont Supreme Court Case, Lawson v. Halpern-Reiss, 2019 VT 38 (2019), the court ruled that HIPAA does not protect medical information if the medical information in question “poses a threat to [the patient] or the general public.” Because the CDC has classified the COVID-19 pandemic as a “public health crisis” and because there have been 737,990 COVID-19 related deaths in the U.S. as of November 2021, health information, such as vaccination status, could be released on the grounds that withholding the information “poses a threat to the patient or general public.” In this case, HIPAA does not protect individuals from revealing vaccination status nor ban businesses from asking for that information. 

Nonetheless, vaccine mandates are not necessarily morally right or wrong — the court of law simply allows the government to implement vaccine requirements based on legal precedent. Thus, Republicans and Democrats must debate mandating vaccines and asking for proof of vaccination on political, not legal, grounds. The fight over vaccine mandates is likely to persist as long as COVID-19 restrictions such as mask wearing and quarantining continue, but the law is clear that it is up to government discretion to force vaccination, and if it decides to, the people must comply unless possessing religion or disability exemptions. These considerations ultimately engender the question of what role the U.S. government should play in citizens’ lives. Should the government step in on matters of personal health and vaccination? While an interesting question, it is entirely political in nature and will thus be answered in the realm of public opinion, not the court of law.