With the delta variant continuing to spread, it’s clear that the coronavirus pandemic is not over yet.
In response, some businesses have begun requiring patrons provide proof of vaccination by showing a vaccine card being allowed inside. In Philadelphia, that includes popular restaurants such as Martha, Zahav, and Le Virtu, among others.
And now a new city mask mandate requires everyone in Philadelphia to wear a mask when going into any business — with an exception for businesses that require vaccination for customers and staff members.
“If a business or institution is requiring that everyone — including staff — be fully vaccinated before entering, then no one in that place needs to wear a mask,” said acting Health Commissioner Cheryl Bettigole in a news conference on Wednesday. “So, there is an exemption for places with a vaccine mandate.”
Recently, there have been some questioning about whether businesses are legally able to institute vaccine mandates. Here is what you need to know:
Can businesses require proof of vaccination?
In a word, yes, says Eric Feldman, professor of law and medical ethics and health policy at the University of Pennsylvania Carey Law School. And, he adds, the idea of businesses requiring vaccination cards to enter or use their services is not much of a controversial topic in the legal community.
“It’s quite clear that restaurants, airlines, cruise ships, your local café, your local university, [or] the school that you may choose to send your child to are all within their legal bounds in asking you to demonstrate that you or your child has been vaccinated,” he says.
In some ways, it’s along the lines of the commonly seen edict of “no shirt, no shoes, no service,” or even dress codes. Generally, private businesses can decide who they are willing to serve and what kinds of requirements they impose on folks who enter — so long as they are not being discriminatory based on things like race, gender, or religious affiliation.
And requiring vaccine cards, in most cases, is not likely to be seen as discriminatory, though some may view it as more of an imposition than needing to wear shoes or a shirt.
“Sure, a restaurant can say, ‘You’ve got to wear shoes.’ Sure, a restaurant can say, ‘You’ve got to show us you’re vaccinated,’” Feldman says.
Isn’t this a HIPAA violation? Aren’t my rights being violated?
Probably not. Opponents of vaccine card requirements often cite the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (commonly known as HIPAA), or the Fourth Amendment as reasons why such requirements may be unlawful. But as Feldman says, those laws don’t have much of an impact here.
The Fourth Amendment, for example, protects us against unreasonable searches and seizures, but only applies to government entities — which something like a restaurant would not fall under. HIPAA, which protects sensitive medical information, applies to “covered entities,” such as health insurers and providers, and doesn’t extend to most businesses outside a health-care setting, Feldman says.
Both the ADA and Civil Rights Act, meanwhile, may provide some protections because they prohibit discrimination — such as refusing service — based on a disability in the case of the ADA, and race, religion, sex, and national origin in the case of the Civil Rights Act.
But, Feldman says, those acts are unlikely to actually prohibit businesses from requiring vaccination cards overall — rather, they require businesses to try to make a “reasonable accommodation” for people who have legitimate medical or religious reasons for not getting vaccinated.
“If one has not been vaccinated because of one’s medical status, then they need to be accommodated in some way,” he says. “You have to take reasonable steps to accommodate people who can’t be vaccinated.”
What is a reasonable accommodation when it comes to vaccine mandates?
Reasonable accommodations can get complicated when it comes to businesses requiring vaccination cards, but, Feldman says, they generally need to be made for folks with “legitimate exemptions” for medical or religious reasons.
For example, businesses may be able to require folks who can’t be vaccinated to show a negative COVID-19 test or use personal protective equipment like a mask or face shield when in the establishment. Or, it may mean having a private dining area for folks who are unable to get vaccinated, Feldman says. Simply just offering takeout food at a restaurant, he adds, may not be considered a reasonable accommodation if the person is looking to have a night out in addition to food.
But there are limits to what a reasonable accommodation might be. For example, asking a restaurant owner to build a new wing to an establishment to accommodate people who cannot be vaccinated may be unreasonable for financial reasons. And, Feldman notes, there may not always be a reasonable accommodation that a business owner can make, depending on the situation.
“The bottom line legally is that you’ve got to do something, you’ve got to try or at least explore options — though it may turn out that there are no good options,” he says. “We are still balancing the legal rights of someone who has a legitimate exemption to vaccination with the public health concerns of having people who are unvaccinated mingling in close contact with others.”
Eric Feldman, professor of law and medical ethics and health policy at the University of Pennsylvania Carey Law School.