October 19, 2021

What is the legality of providing proof of vaccination?

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. 

HIPAA

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.

Fourth Amendment  

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. 

Gray Area 

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?

8 thoughts on “What is the legality of providing proof of vaccination?

  1. Hi Alissa,
    Your article was very helpful and super interesting. I think medical information should be protected to an extent. I think that health, in general, shouldn’t be politized at all. Health issues being made political is a major problem that we are all dealing with today. I appreciate your thoughts and your article.

  2. This is such an interesting topic to cover. My roommates and I were just talking about this and debating the different sides over dinner last night. It’s hard because it seems like a lose, lose for both sides. Either people feel that their rights are being taken away and their privacy is being invaded or businesses are potentially allowing unprotected people around their employees and customers. I also like how you brought up the idea of how that puts a lot of pressure on employees to have to argue with a customer about showing vaccination proof, especially if their reasoning is very personal. That’s something I hadn’t thought of before and if I ran into this issue as an employee, I would feel very uncomfortable.

  3. I agree that this is definitely challenging! I think businesses should have the right to turn people away if they aren’t vaccinated because this is something that affects everyone, but at the same time keeping that up to them creates such a challenging atmosphere for the employees that are just trying to do their jobs and keep people safe. Just like there will always be people who are against the vaccine, I think this will continue to be one of those super tricky issues where no one is 100% satisfied with the outcome!

  4. Alissa,

    This is a very interesting topic and thank you for sharing your input. I’m interested to see what will happen in the next year or two. Not everyone will choose to receive the vaccine which will create a lot fo controversy. The information regarding the state of Oregon helped a lot. I’m moving to Idaho later this June, and I’m interested to see how different the two states choose to go about this.

    Great job!

  5. This is a very interesting article. I have been debating this topic for a while now and it is awesome that you brought this up! I agree with all of your points that you made in this blog as well!

  6. Hey Alissa,

    I enjoyed reading your article as there are many factors that go into the legality of proving one is vaccinated. As of right now, we see some businesses in Oregon such as Costco, who don’t require you to wear a mask if you’re vaccinated. It’s a tough topic knowing that some people are dishonest with their vaccination status, but also keeping others in risk safe. It will be a challenging issue to face in the future, but hopefully everyone gets vaccinated soon.

  7. Hi Alissa,
    Love this post and topic because it is such a huge topic on social media today and in general with the CDC’s announcement about vaccinations. I really liked how things were hyperlinked, and you went back to your sources to provide proof. This blog was very well researched and I actually sent this to people to read!

  8. Hi Alissa
    Love that you chose a topic that is so prevalent right now in our day-to-day lives. As vaccines are rolling out and COVID-19 is slowly coming to an end (hopefully). The argument of whether or not it should be required to show proof of vaccination to be able to enter places without a mask has been a big topic. I will disclose that I am fully vaccinated as of just over two weeks ago and I feel very thankful for the chance to be vaccinated. I knew from the very beginning that I wanted to get vaccinated once it was available to me, but I can’t say the same for my dad. Because I’m away at college, I have decided against telling my dad that I’m vaccinated because I just don’t feel like arguing with him about his whole anti-vax and anti-mask rhetoric. Just like if you’re attending a public school or university and have to show your vaccination record for certain vaccines, this is just adding one more to the list and I think it’s important that if you’re choosing not to get vaccinated (unless for medical or religious reasons) that you should not be allowed to take off your masks in large areas unless we get to the point of herd immunity, which might be a ways away.

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