The legality behind mandating vaccines for customers

Dorit Rubinstein Reiss, UC Hastings College of the Law Professor of Law, joins Yahoo Finance to discuss the legality of restaurants mandating vaccines for entrance and overall outlook on vaccine mandates.

Video transcript

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ALEXIS CHRISTOFOROUS: Welcome back. Want to eat at a Danny Meyer restaurant? Then you better show your proof of vaccination.

Danny Meyer, which is the founder of Shake Shack and the leader of the Union Square Hospitality Group, announced last week that in order to eat at his establishments, most of them in New York City, you will have to show proof of vaccination. Do want to mention here, Shake Shack is not saying you have to show proof of vaccination, but restaurants like Gramercy Tavern, Blue Smoke, and Union Square Cafe are.

Let's talk about this now with Dorit Rubenstein Reiss, Professor of Law at UC Hastings College of the Law. Professor, thanks so much for being with us.

I think, first off, people hear this and they say, wait a minute, how can that be legal? In short, is it legal for restaurateur Danny Meyer to mandate this of his customers?

DORIT RUBINSTEIN REISS: There's two caveats. Just like a restaurant can say no shirt, no shoes, no service, they can say no vaccine, no service. The two caveats are that under the Americans with Disabilities Act, they have to accommodate people with real disabilities-- for example, a medical reason not to get vaccinated-- and that there is some uncertainty, although it's decreasing, about whether you can mandate a vaccine under an Emergency Use Authorization. Because the Emergency Use Authorization law says that recipients have a right to accept or refuse the vaccine, but it only says that to the secretary of health. It only tells the secretary of health to let recipients know that they can't be forced to take the vaccine. It's not a prohibition on private actors from requiring vaccines for entry.

KRISTIN MYERS: So to that point then, let's just say someone wants to go to a restaurant that has created this policy that you have to be vaccinated to enter and for some medical reason they are unable to get vaccinated. We know plenty of folks that are immunocompromised or have some other disabilities that are unable right now to get the coronavirus vaccine. Would they have to carry some sort of proof from their doctor in order to get some sort of accommodation? In practice, really, how does this end up working? And do you think this leaves a lot of room perhaps for error as hostesses, frankly, have to start becoming gatekeepers?

DORIT RUBINSTEIN REISS: So first of all, starting from your last point, yes, enforcing this is another burden on the people in the restaurant, and the restaurant is choosing to accept that burden.

As to your other question, the people who can't be vaccinated would have to show that they have a disability and some limits. But when we [INAUDIBLE] complication, it doesn't have to be show me your papers and you can come, I think. It can be, OK, you can't be vaccinated? Show me a test, a negative test from the last 48 hours. Show me a-- wear a mask where other people don't have to. Sit outside where everybody who is vaccinated can go inside.

So there's different ways to do it, and a restaurant will have to figure out what's the best structure. But at the end of the day, yes, they may end up saying unless you can give me papers that show that you can't be vaccinated, you're not coming in because an accommodation would be too much of a burden. Or if you don't show me the papers, you have to show me that you're tested. I'm going to assume you are unvaccinated, and you're going to have to comply with other requirements.

KRISTIN MYERS: You know, we've heard of a lot of folks using the phrase that if you ask them about their vaccination status or you require them to be vaccinated that it is, quote, a violation of their HIPAA rights. We've heard from Congresswoman Marjorie Greene Taylor. She's used that against journalists who have asked her if she has been vaccinated.

So I just kind of wanted to do a little bit of myth busting because I think I've heard so many folks really bandy about and toss that phrase around, and I don't think they entirely know what actually is a violation of their HIPAA rights. So I'm hoping you can really just break down for everyone-- you're a professor of law. You are the expert. What does and does not constitute a violation of some of your rights to privacy around your medical records?

DORIT RUBINSTEIN REISS: That's a great question. So first of all, HIPAA isn't the only source of protecting medical privacy. And what HIPAA does, it says your medical providers or some other covered entities, but mostly medical providers can't share your medical information. In other words, it protects your medical privacy in the sense of protecting the records that the people who are treating you hold.

It doesn't affect other people. It doesn't stop anyone from asking you about your status. It doesn't stop other bodies like your employer requesting proof of vaccination. It only applies to your provider and limits their right to give the information out.

Now, quite a few states have other protection of privacy, but most of them would work in specific contexts. For example, there may be employment privacy protection. And at any rate, they won't stop someone in a social context like a restaurant from asking you are you vaccinated? The person can't force you to answer, but on the other hand, they also don't have to serve you, and they can treat you as unvaccinated if you refuse to answer.

ALEXIS CHRISTOFOROUS: And Professor, what about when it comes to businesses mandating and universities and other schools mandating vaccines? Where do they stand on the side of the law?

DORIT RUBINSTEIN REISS: So there's some differences here, but the starting point is that we have a history of a vaccine mandate in the workplace. Hospitals have been requiring that medical staff be vaccinated against, for example, influenza, MMR, hepatitis B for a long time-- not all hospitals but many.

And it's generally legal. You may have to give a medical exemption to people who can't be vaccinated. You may have to give exemptions to people with sincere religious objections to the vaccine, or you may have to accommodate them in other ways. And even that's not sure because if it's more than a minimal burden to accommodate them, you may not have to.

But employers can mandate vaccine as can universities. Universities have mandated vaccines for a long time.

The question here is, is it still true for an EUA vaccine, for a vaccine under an Emergency Use Authorization? And we have increasing indications that, yes, you can mandate the vaccine under an Emergency Use Association. We have one court decision by a federal court in Texas that upheld a vaccine mandate by a hospital, and we have an opinion of the Office of Legal Counsel to the president that also acknowledged this. Neither of this is going to be binding on another court, but both can be persuasive and influence other courts to uphold mandates for vaccine under an EUA.

KRISTIN MYERS: Professor, I want to ask you the flip side of the question which is what we started with because while some restaurants are saying that you have to be vaccinated to enter, I've also seen restaurants say that you are not allowed to be vaccinated if you want to dine there. So I'm going to throw that question at you. Is that something that is also legal? I mean, I would think that it stands if a business can require that you are vaccinated, they can also require that you not be vaccinated, although I'm not sure how the proof of that would work. And just more broadly, looking out ahead, what kind of legal challenges are you expecting to really come down the pike as we hear particularly a lot of Republicans really bristle at some of these vaccination mandates and requirements?

DORIT RUBINSTEIN REISS: So these are several really great questions. So starting with the point of business that wants to prohibit someone from entering if they're vaccinated. Legally they can. If they want to require people before they're entering to paint their face blue, they can, in theory, do that. Private business can set the terms of engagement as long as they don't violate an antidiscrimination law like the Americans with Disabilities Act. So they can require requirements that are strange.

As you point out, the question will be, how do you enforce it? There isn't a certificate of "I'm not vaccinated." So how do you know if someone isn't vaccinated?

The real remedy there, however, is a market remedy. People who care about their health probably should avoid restaurants that say if you're vaccinated, don't come in because it's a health issue and there may be other health issues.

The other question you asked is are we going to see lawsuits? And we may see some lawsuits against businesses who require a vaccine, for example, claim that this violates-- that they violated the Americans with Disabilities Act by not providing enough accommodation, but they're going to be rare and hard to bring in.

What we're seeing more of is some states are passing laws making it illegal for business to do this. And that's where we'll see more action.

And I will add that one of those laws in Florida that's prohibiting business from asking for vaccine status is now being challenged by a cruise company who wants to require that people be vaccinated.