Many legal experts agree: it’s almost certainly legal for most private businesses to turn away customers based on their vaccination status.
The Foo Fighters announced they will hold a full-capacity concert at Madison Square Garden on June 20, but only vaccinated guests will be allowed to attend. The rules for the event, which will be the first full-capacity concert held in New York City since the COVID-19 pandemic began, invited new scrutiny to the legal questions at hand as America returns to normal post-vaccine.
Foo Fighters will perform at Madison Square Garden on June 20, but only for fans who are fully vaccinated. It will be the first full-capacity concert in a New York arena since March 2020. https://t.co/xdw0ubCLgD
— New York Times Arts (@nytimesarts) June 8, 2021
A number of attorneys, legal professors and constitutional scholars spoke with the Daily Caller, and none could identify a particular reason that such an event can’t be held. (RELATED: Poll Finds 90% Of Fully Vaccinated Americans Are Still Wearing Masks)
“Private businesses’ asking about your COVID vaccination status — and other health issues — is perfectly legal and raises no constitutional issues,” said Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute. There could be an exception for those who are unable to get vaccinated, but not for simply choosing not to be: “The Americans with Disabilities Act does protect against discrimination for certain medical/physical conditions, but the conditions of ‘being COVID-unvaccinated’ and ‘not wishing to disclose vaccination status’ aren’t among them.”
“Generally a business can run its operations as it likes as long as it doesn’t violate the law. A nightclub bouncer can decide to only let in certain potential guests and exclude others, but can’t do so in a way that would violate discrimination laws, such as excluding guests based on race,” Dallas-based health care attorney Jeff Drummond told the Daily Caller. “In the area of refusing to provide services to unvaccinated customers, the potential legal hurdle would be whether the refusal is illegally discriminatory.”
Experts said there isn’t much reason to believe that such a restriction is a violation of discrimination law. “With a few exceptions, the law gives private businesses wide discretion over whom they serve. State and federal civil rights laws prohibit ‘places of public accommodation’ (like restaurants, shops, and concerts) from discriminating, but mostly on the basis of things like race, religion, gender and disability,” said University of Virginia law professor Kevin Cope.
“As long as you’re not doing something in a discriminatory way, you’re not doing something that’s violating some other sort of law, I think you’re okay,” agreed Dr. Roger D. Klein, a physician, attorney and policy adviser to the Heartland Institute.
Concerns over HIPAA law likely wouldn’t be a factor either. Drummond, a specialist in dealing with HIPAA compliance, said “HIPAA isn’t an issue. HIPAA only applies to health plans, health care data translation companies (called “health care clearinghouses), and most (but not all) health care providers. Airlines, restaurants, landlords and non-health care business owners are not subject to HIPAA.”
Harvard law professor and health law expert I. Glenn Cohen agreed, saying, “ordinarily no,” HIPAA wouldn’t apply in this situation. “This is because places of business or employers are not ‘covered entities’ within the meaning of the HIPAA statute so the statute will not apply,” he explained.
The fact that these types of restrictions are compliant with federal law doesn’t mean they can’t be outlawed at the state level, according to Cohen. “The answer may depend on the state you are in, because state law varies. Some states like Florida, for example, have by legislation recently prohibited requiring proof of vaccination. Most states have not.”
“I think those (laws) would be applicable and would be enforceable,” Klein added. “You can always challenge it… you can almost always file a lawsuit about something. Whether you can actually win is a different issue. I think the state has a right to prevent businesses from taking certain actions.”
Several Republican-led states like Florida, Texas and Alabama have either passed legislation or seen executive orders issued that ban the implementation of so-called “vaccine passports” at private businesses. (RELATED: Gov. Abbott Issues Executive Order, Bans Vaccine Passports)
Shapiro, however, posited that these laws could be vulnerable to a challenge in court. “States can pass laws forbidding businesses from asking about or treating people differently according to vaccination status, but there’s a serious legal argument that this sort of law violates property rights,” he said. “The main thing that stops businesses from asking overly intrusive questions is that they wouldn’t want the bad press or competitive disadvantage from doing so unless it were really important to them.”
A growing list of universities will require students to be vaccinated to return to campus in the fall. However, members of the Biden administration have repeatedly stated that there will be no federally-mandated vaccine passport. Some experts have theorized that the lack of a central database to verify vaccination records against could lead to difficulties enforcing private vaccine mandates.