Vaccine Rights: What Businesses, Employers Can And Cannot Do

As vaccinations increase so do the questions about individual rights vs. the legal rights of private businesses.
Posted at 6:23 PM, May 19, 2021

It seems the country is being divided, even if unintentionally, between the vaccinated and the unvaccinated. From restaurants…

"When the guests come through the door, it's going to the first question that we ask: are you guys vaccinated? Can you prove it? Can you just show a quick bit of proof?" said Kevin Ohanlon of the Malt House Restaurant, a question in response to New York's removal of mask mandates for vaccinated patrons. 

To cruise lines, like Norwegian, which are requiring all guest and crew members to be fully vaccinated. 

If you haven’t had a COVID-19 vaccine you may be wondering about your rights. Experts say that depends on the situation.

Can restaurants legally turn away a customer who cannot prove that they've been vaccinated? 

"There's no federal law prohibiting a private business from requiring that patrons show proof of vaccination. We're all familiar with 'no shoes, no shirt, no service.' The key is that any set requirement be applied in a non-discriminatory manner against certain groups. For example, a person with a disability," explained Lindsey Conrad Kennedy, an attorney with Eckert Seamans' Pittsburgh office. 

"The restaurant has to provide reasonable accommodations or modifications to allow individuals with disabilities an equal opportunity to use and enjoy the restaurant. So you can see that the issue here would be a restaurant is not going to know the reason why someone did not get vaccinated was because of an underlying disability, or for another reason all together. Instead of turning away all of those who have not been vaccinated, what we might see is restaurants requiring masks and social distancing for those who are not vaccinated, or you have no proof of vaccination, which would really be a type of accommodation," said Leigh C. Bonsall, a labor and employment attorney with Chicago’s Hinshaw & Culbertson. 

Then there’s work.

"Any person joining Delta in the future, future employee, we're going to mandate they be vaccinated before they can sign up with the company," Delta Airlines CEO Ed Bastian told CNN.  

Legal experts say jobs can require a vaccination for current or future employees with some caveats.

"Employers can impose a mandatory vaccination requirement provided that they allow for certain exceptions for disability related reasons and religious related reasons," said Conrad Kennedy. 

And despite legal advice trending on Twitter, attorneys say the federal privacy HIPAA law is not a medical catch-all. 

"Generally speaking, HIPAA does not cover private businesses, vis a vis their patrons or customers, nor does HIPAA cover employers, vis a vis their employees," explained Conrad Kennedy. 

"Asking an employee whether they've been vaccinated or not has not been found to be a medical inquiry or a medical exam under the Americans with Disabilities Act. So that question in and of itself of just whether an employee is vaccinated or not, that is something that's permissible," said Bonsall. 

Experts say as we navigate the new world of vaccinated and unvaccinated some of the long-standing federal laws are likely to see legal challenges.