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Federal law allows businesses to ask for proof of vaccination

May 21, 2021 GMT

CLAIM: The Fourth Amendment of the United States Constitution and Title III of the U.S. Civil Rights Act prohibit businesses from asking people for proof of vaccination.

AP’S ASSESSMENT: False. It does not violate the Fourth Amendment or the 1964 Civil Rights Act for a business to ask customers or employees for proof of vaccination, according to legal experts. States may prohibit businesses from requiring proof of vaccination for service, as Florida has done.

THE FACTS: Legal experts say federal laws don’t block businesses from asking customers or employees about their vaccine status, despite social media posts claiming the opposite.

Posts circulating widely on Instagram this week cited excerpts of the Fourth Amendment and the 1964 Civil Rights Act to falsely claim that a business asking for proof of vaccination or denying entry based on vaccination status is a “violation of your privacy and property rights” protected by federal law.

The posts claimed the Fourth Amendment protects individuals against businesses asking about vaccines because it protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”

However, legal experts say that amendment refers specifically to searches and seizures by the government, not by private entities.

“The Fourth Amendment only applies to governmental searches and seizures and certainly not to businesses asking for proof of vaccination,” said Lawrence Gostin, a law professor at Georgetown University who specializes in public health law.

“I don’t see how the Fourth Amendment will be relevant to private employers or private businesses in this case,” said Glenn Cohen, a law professor and bioethics expert at Harvard University.

The posts also suggested that the 1964 Civil Rights Act, which prohibits discrimination based on race, color, religion, sex or national origin, protects individuals from being asked about vaccination status.

That’s not accurate, according to experts. Businesses do have special considerations around discrimination outlined in the Americans With Disabilities Act and the Civil Rights Act, but these would not preclude a company from asking a customer or employee about vaccination status.

The U.S. Equal Employment Opportunity Commission has allowed companies to mandate the flu and other vaccines, and has also indicated they can require COVID-19 vaccines.

There are exceptions; for example, people can request exemptions for medical or religious reasons.

But, the EEOC said, asking someone to show proof of a COVID-19 vaccination, would not be a disability-related inquiry.

“Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” the EEOC said.

The EEOC guidance explains that if an employee is not vaccinated and says it is due to disability or religion, a workplace excluding or acting against the employee may have an obligation to show “that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

Other posts circulating widely in recent weeks have falsely suggested that a business asking someone for their vaccination status would be a violation of the federal law that restricts release of medical information. But that law, known as HIPAA, only protects health information that is “in the hands of health care entities, like hospitals and other health care institutions,” according to Alan Meisel, law professor and bioethics expert at the University of Pittsburgh.

While federal law doesn’t restrict businesses from asking about vaccination status, states may pass laws that do. In Florida, Gov. Ron DeSantis issued an executive order in April barring businesses from requiring customers to show proof they have been vaccinated against COVID-19 in order to get service.

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This is part of The Associated Press’ ongoing effort to fact-check misinformation that is shared widely online, including work with Facebook to identify and reduce the circulation of false stories on the platform.

Here’s more information on Facebook’s fact-checking program: https://www.facebook.com/help/1952307158131536