As the delta variant continues to spread, it is clear that the coronavirus pandemic is not over yet.
In response, some companies have begun introducing requirements for customers to provide proof of vaccination by presenting a vaccination card before using their services. In Philadelphia, these include popular restaurants such as Martha, Zahav, Le Virtu, and others.
And now the city has introduced a new mask mandate that requires everyone in Philadelphia to wear a mask when entering a store – except for companies that require vaccinations for customers and employees.
“If a company or institution requires everyone – including its employees – to be fully vaccinated before entering, no one has to wear a mask in this place,” said Acting Health Commissioner Cheryl Bettigole at a press conference on Wednesday. “So there is an exception for places with a vaccination mandate.”
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Recently, however, there has been questioning whether companies are legally able to introduce vaccine mandates in their operations. So can companies require you to show your vaccination card? Here’s what you need to know:
In a word, yes, says Eric Feldman, professor of law and medical ethics and health policy at the University of Pennsylvania’s Carey Law School. And the idea that companies need vaccination cards to enter or use their services is not a controversial issue in the legal world.
“It is very clear that restaurants, airlines, cruise lines, your local coffee shop, your local university, [or] The school you want to send your child to is subject to its legal limits if it asks you to provide evidence that you or your child have been vaccinated, ”he says.
In a way, it conforms to the common edict of “no shirt, no shoes, no service” or even a dress code. In general, private companies can choose who they want to serve and what kinds of demands they place on participants – as long as they are not discriminated against based on race, gender, or religion.
And for the most part, the requirement for vaccination cards is unlikely to be seen as discriminatory, although some consider it more unreasonable than wearing shoes or shirts.
“Sure, a restaurant can say, ‘You have to wear shoes.’ Sure, a restaurant can say, ‘You have to show us that you have been vaccinated,’ ”says Feldman.
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Probably not. Opponents of vaccination card requirements often cite laws like the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Health Insurance Portability and Accountability Act (commonly known as HIPAA), and the Fourth Amendment as grounds for such requirements to be illegal. But, as Feldman says, those things don’t have much of an impact here.
The fourth amendment, for example, protects us from improper searches and seizures, but only applies to government agencies – which something like a restaurant would not fall under. HIPAA, which protects sensitive medical information, applies to “covered entities” like health insurers and health care providers, and does not extend to most companies outside of the healthcare sector, Feldman says.
Both the ADA and the Civil Rights Act, meanwhile, may offer some protection, as they prohibit discrimination – such as denial of service – based on disability in the case of the ADA, and on the basis of race, religion, gender, and national origin in the case of the ADA, Civil Rights Act .
However, Feldman says these laws are unlikely to altogether prohibit companies from requiring vaccination cards.
“If someone hasn’t been vaccinated because of their medical status, they have to be housed somehow,” he says. “You have to take sensible steps to accommodate people who cannot be vaccinated.”
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Reasonable precautions get a little tacky when it comes to businesses that require vaccination cards, but, Feldman says, they generally need to be taken for people with “legitimate exceptions” for medical or religious reasons. And what is reasonable can be complicated.
For example, companies may require people who cannot be vaccinated to present a negative COVID-19 test or use personal protective equipment such as a mask or face shield at the facility. Or it could mean having a private dining area for people who can’t get vaccinated, Feldman says. Simply offering take-away meals in a restaurant, he adds, may not be considered adequate accommodation if the person is planning to spend an evening in addition to eating.
But there are limits to what reasonable accommodation could be. For example, it may be financially unreasonable to ask a restaurant owner to build a new wing for their business to accommodate people who cannot be vaccinated. And, according to Feldman, there may not always be reasonable accommodations a business owner can take, depending on the situation.
“The bottom line, legally, is that you have to do something, you have to try, or at least explore, options – although it may turn out that there aren’t any good options,” he says. “We are still weighing the legal rights of someone who has a legitimate exception to vaccination with public health concerns that unvaccinated people will mingle in close contact with others.”
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Eric Feldman, Professor of Law and Medical Ethics and Health Policy at Carey Law School, University of Pennsylvania.
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