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More businesses are requiring proof of vaccination for employees and patrons. Is it legal?

Posted at 7:57 PM, Aug 10, 2021

More businesses are considering requiring vaccines for employees and or patrons. For some business owners, the decision was made months ago.

“It only just seemed like the logical, reasonable, prudent thing to do was require vaccines because that is how we were going to get the economy and particularly the service industry back in business,” Marshall Smith, the owner of Bar Max, said.

Smith made his business decision early.

“I went to vaccinated-only the same day President Biden announced that vaccines were available for free to every adult,” Smith said.

Almost every day since April -- except a few weeks where country adult vaccination reached 70% and the delta variant was not yet a concern -- Smith's bar has required proof of vaccination to get inside.

“At that time to the best of my knowledge, we were the first and only bar in the country that was requiring it,” he said. Early on, he experienced a lot of backlash. “Early on we had a lot of harassing phone calls, hate email, hate mail,” Smith said.

His goal -- provide a safe space for patrons and employees.

“To give them an oasis and reprieve. To be able to go out and actually enjoy a fabulous space and a great cocktail. I'm all for it. I’m happy to do it,” he said.

The healthcare industry was one of the first industries where vaccine mandates were being put in place for employees. And in many cases -- the delta variant is one of the reasons behind such a move.

“We made the decision to move with mandating vaccines for all of our employees because we think there is an unprecedented threat related to the delta variant of the virus that causes COVID-19,” Dr. Andrew Bindman, chief medical officer of Kaiser Permanente, said. “As a healthcare organization, we felt we had an imperative to do no harm, to protect our patients, so we moved forcefully and thoughtfully toward creating a mandate for vaccinating all our employees so our patients could know that they would be safe.”

Recently, more establishments have been announcing they will require employees and patrons to have proof of vaccination. New York City is moving toward requiring such in restaurants, bars, gyms, Broadway shows-- and other businesses across the U.S. are looking to do the same.

But is it legal?

“The states are within their rights to implement that type of legislation. There was a Supreme Court case in1905 that upheld states’ ability to enforce compulsory vaccination laws,” Jessamyn Jones, an attorney at 3i Law LLC, said. She specializes in employment law, and said private employers and businesses can also make their own choices.

“They are absolutely within their rights to require a vaccine as a condition of employment,” she said. “Very similar to a private employer, private businesses, if it’s a private business they have the ability to serve whomever they choose to so long as they are not discriminating on the basis of race, gender, religion, national origin, disability.”

However, workplace experts say exemptions apply.

“They do, however, have to have exceptions that are allowable for religious, medical, or personal reasons,” said Christian Hardigree, dean of the School of Hospitality at the Metropolitan State University of Denver.

People who show up at businesses that require proof of vaccination have rights.

“If a private business wants to make proof of vaccination a condition for coming into a business, they are absolutely within their right to do so. They cannot however require someone or force somebody to show proof of vaccination if that individual does not want to do so”,” Jones said.

At that point, customers would likely be turned away. Jones said some people call that a violation of the 4th Amendment. However, that hasn't been upheld.

“As of now, nobody has successfully established that it violates any sort of constitutional right,” Jones said.

As more businesses consider their next precautionary moves, what is and isn’t allowed could change.

“We’re certain to see challenges to both sides as we continue on throughout this process,” Jones said.

As for restaurants, Sonia Riggs with the Colorado Restaurant Association said a recent survey showed some restaurants are waiting to see how vaccine requirements pan out.

“Nearly 15% said they are considering or are about to move to mask and or vaccine requirements, but they’re waiting to see how it plays out in other cities,” Riggs said.

Riggs said 2020 devastated the restaurant industry.

“Overall we’ve heard that restaurants have been encouraging employees to get vaccinated,” she said. “At this point, I think restaurants are just doing their best to survive and continue to try to recover from this devastation they’ve experienced over the last 15 months.”

And for each business, they make the best choices they can.

“My business is what I can control. It was a way for me to keep myself safe, my parents safe, our guests, employees, everyone safe,” Smith said.