By Alissa Kobe
Since the COVID-19 pandemic has begun, the vaccine was touted to be what would bring an end to it. Fast-forward to present-day, children 12 and older now have the clearance to receive the COVID-19 vaccine. About 131 million people today are fully-vaccinated, with around 287 million doses given in total. Close to 40% of the American population is now vaccinated. This growing number in vaccinations influenced the CDC to change their COVID-19 guidelines, and on May 14th, they announced fully-vaccinated individuals do not have to wear a mask indoors or outdoors. It is only required in large-scale events and public transportation.
However, this has many people questioning how we know if someone is fully vaccinated. Though President Biden’s Press Secretary Jen Psaki has stood by that the government will not require proof of vaccines, this has not stopped Oregon Governor Kate Brown from mandating her own guidelines.
In stark contrast to a number of states who have prohibited businesses from asking for proof of vaccination, Governor Brown detailed in updated COVID guidelines for Oregon businesses on May 18th, that all businesses are required to ask for proof of vaccination and have a system in place that will allow them to do this, or the mask mandate still applies.
This issue has proved already controversial, with Oregonians for Medical Freedom calling this a “violation of our medical privacy.” However, in terms of the law, is it a violation?
One of the main concerns regarding vaccination proof to enter businesses, is whether or not it is a violation of HIPAA (Health Insurance Portability and Accountability. However, HIPAA is only applicable to specific entities like health plans, health care providers and health care clearinghouses. So technically, businesses are not considered one of these entities, so HIPAA does not apply to them. You can read more in-depth about what HIPAA protects against here.
Another question has been whether requiring proof of vaccination is a violation of the Fourth Amendment, which states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
However, the Fourth Amendment only applies to government entities, not private businesses. So a business is well within their right to ask to see proof of vaccine under the Fourth Amendment.
Though these circumstances do not prevent a business from asking you for proof of vaccination, there is almost always a gray area involving the law. According to the Civil Rights Act of 1964, businesses can not refuse service or discriminate against a customer based upon race, color, religion, sex, national origin, and later sexual orientation and gender identity.
Theoretically, if a customer were to be against vaccination because of their religion, and they enter without a mask, does a business have a right to refuse service? A person could say that they were discriminated against based upon their religion, because their religion is against vaccines. This is where I see gray area occurring, where a business could be taken to court for discrimination, but again, it really depends on the extent both parties are willing to go.
Overall, one thing is for certain, the government can not mandate vaccines without allowing for exemptions. But Oregon’s government is now able to require businesses to have a system in place where they check for proof of vaccination. Personally, I see the reasoning behind this requirement, as we want to prevent unvaccinated people from not wearing masks in businesses. However, this can place immense stress on workers and businesses to have to ask someone about their medical background. Customers may become combative about their vaccination status and it will ultimately affect the workers the most.
It is not the government entity who will be dealing with angry customers who do not want to show their vaccination status, it will be business owners who will pay the price.
What are your thoughts on Oregon’s requirement for proof of vaccination to not enter a business without a mask? Do you think it should be legal or illegal?