Can Businesses Require Proof of COVID-19 Vaccination Before Providing Entry or Service To The Public?

There have been discussions as to whether private companies can require proof of vaccinations from the public now that COVID-19 (“COVID”) vaccinations have been approved by the Food & Drug Administration in the United States.  Lately, much of the focus has been on whether employers can require their employees to get the COVID vaccine.  However, will that focus quickly shift to restaurants and hotels or other venues that serve the public at large?  

Rolling Stone Magazine has reported that as early as November 2020, the backlash associated with such effects has already been felt by Quantas Airlines (“Quantas”), which announced that it would require passengers to be vaccinated against COVID, beginning in mid-to-late 2021. People from across the political spectrum were outraged, and some travel agencies stopped booking with Quantas.[1]

Dr. L.J. Tan (“Dr. Tan”), an immunologist and the Chief Strategy Officer of the Immunization Action Coalition (IAC), says that policies like these are still premature from a scientific standpoint.  Specifically, it is not yet known how long immunity from the COVID vaccine will last.  According to Dr. Tan, “[w]e haven’t got six months, nine months of duration of protection data yet.  So, what expiration date are you going to accept as a private entity?  If I show up with a card that shows I got vaccinated five months ago, are you going to let me in?  And then does that create a sense of false security?”  The potential problem is that a person’s immunity may have waned since receiving the vaccine, and they may be an asymptomatic carrier.  Moreover, at this stage, the United States still hasn’t developed a rigorous testing and contact tracing strategy yet, something Dr. Tan says must be in place for mandated vaccine policies to be effectively enforced. 

Companies will have to balance the desire to serve customers and generate revenue as a safe place to conduct business with the potential of excluding potential customers.  One New York City restaurant made headlines in November when it began charging $50.00 to test people who wanted to dine indoors.  New York City has since banned indoor dining.[2]  The Civil Rights Act imposes restrictions on places that offer “special accommodations,” such as hotels, movie theaters, sports arenas, music halls, and restaurants.  Under the Civil Rights Act, these establishments cannot discriminate on the basis of someone’s race, color, national origin, or religious beliefs.  If someone does not wish to receive the COVID vaccination because it violates their religious convictions, the establishment must try to provide reasonable accommodations before it can refuse service.

At this time, it is unclear whether a federal mandate requiring a vaccination will be enforced or whether individual states will require mandatory vaccinations.  In the 1905 landmark case of Jacobson v. Massachusetts, 197 U.S. 11 (1905) the United States Supreme Court upheld the constitutionality of a state criminal law that required all adult inhabitants of Cambridge to get a smallpox vaccine or to be fined.  The Supreme Court explained that an individual’s liberty rights under the U.S. Constitution are not absolute and the mandatory vaccination law was necessary to promote public health and safety.[3]

Although Jacobson v. Massachusetts is over 100 years old, courts continue to rely on the reasoning of the case.  In addition, state governments still occasionally enact broad compulsory vaccination policies.  In 2019, in the midst of a measles outbreak, New York City mandated that anyone over six months of age who lived, went to school, or worked in several zip codes within the city had to be vaccinated against measles or be subject to a fine.  Currently, most companies, businesses, and employers are taking a "wait and see" approach.  Most companies want to see if another entity suffers any backlash or the extent of any economic effects such a decision may have on a business or company.