As the social distancing and mask-wearing requirements are lessened for fully vaccinated people, businesses seek ways to adopt these policies around vaccinated and non-vaccinated customers and employees. Thus, the question about the COVID vaccination has become the first one to ask in the ‘new normal’ routine. 

Have you taken the COVID-19 vaccine? Can an employer demand proof of vaccination? Watch this expert video interview with Pr. Orentlicher to find answers to all these COVID vaccine questions from the legal perspective.

When we're talking about COVID-19 or other communicable diseases, a patient's decision affects a lot of other people. And so health law changes a lot when it comes to public health…

David Orentlicher is a Professor of UNLV William S. Boyd School of Law. In this video, he explains the Health Law and your health rights during the pandemic.

Questions covered in this expert video interview about health rights:

Introduction

Michael: Hi guys, we have Professor Orentlicher, who is joining us from the University of Las Vegas to talk about the health law. That is very important during this COVID-19 time as we are coming out of the pandemic. David, please introduce yourself.

Pr. Orentlicher: Sure. Thank you for having me. I'm David Orentlicher. I'm Judge Jack and Lulu Lehman Professor at the University of Nevada, Las Vegas, or UNLV as we say, School of Law in Las Vegas. I've been there for about four years now. And I also direct the UNLV Health Law Program, which is a joint effort by the school of law and the school of public health. We also work with the school of medicine, the school of nursing, and other schools on health law activities.

How Has COVID-19 Impacted the Health Law?

Michael: What do you think are the most important questions consumers will face as we come out from the pandemic?

Pr. Orentlicher: Of course, their number one issue is what is safe to do and what's not safe to do. And in terms of health law, an important question is what can we do, or what should we be doing to encourage or even require people to follow good public health rules?

When we're talking about COVID-19 or other communicable diseases, a patient's decision affects a lot of other people. And so health law changes a lot when it comes to public health and sort of the general view that it's up to the patient to decide, no longer holds. And so what are the limits to patient self-determination and patient autonomy when we get into the public health arena?

That's a very important area and the Supreme Court first addressed this over a hundred years ago, almost 120 years ago when there was a smallpox outbreak. And this was in Massachusetts and the city of Cambridge, they adopted an ordinance saying everybody needs to be vaccinated against smallpox and there were objectors.

And the Supreme Court came down on the side of the government saying if there's an important health risk at stake, then we leave it up to the public health authorities to decide what's in the public interest. And so this was Reverend Jacobson, who was prosecuted for refusing to be immunized, well, he was fined and that was the punishment, to be fined.

And he objected to being fined for not having a vaccine and so the Supreme Court said, "No, the state's entitled to require." But note, they didn't actually force him to be vaccinated, they fined him for not being vaccinated. We don't always go the full step and say, "We're going to impose a treatment."

Sometimes we do. People who have tuberculosis, where if they can, if they don't undergo treatment they put other people at risk for tuberculosis, courts will say, "You need to be treated." Now in England, they'll say, "If you don't want to be treated, then you can stay isolated and by yourself so you're not putting anybody else at risk." So that's what they'll do in England.

They'll say, "You don't have a right to spread your tuberculosis, but you do have a right to refuse treatment." In the United States we will, courts will say, "We're going to insist that you be treated." Because tuberculosis is such a serious disease and we don't want other people at risk.

Is It a HIPAA Violation to Ask for a Proof of COVID Vaccine?

Michael: HIPAA, health insurance privacy, the laws that exist are strict in the United States. Each patient's records are protected by law and can't be distributed freely. COVID-19 vaccination is different. There are public records about who is vaccinated, who is not, they're trackable, traceable, as far as I understand and as far as I know. People are talking about passports, immunity passports, so to speak, around the world. How does it work?

Pr. Orentlicher: Patient, the confidentiality of your medical information is very important and it's longstanding and if you look at different codes of medical ethics, patient confidentiality is one of the essential requirements that we want to make sure that patients are comfortable disclosing full information to doctors, because unless you know everything about the patient's health and their life, you can't give them optimal care.

So to make sure patients are comfortable disclosing information that's intimate, private, and could be embarrassing or it could subject them to discrimination, doctors promise and the law holds doctors to their promise that they won't share the information.

And the federal law that you mentioned, that health information, HIPAA law, that what it says is when you share your information with your healthcare providers, they can't share it with other people. But there are exceptions and one of the important exceptions is in the context of public health.

So there are a lot of public health reporting requirements that if people are diagnosed with a communicable disease, often with many significant communicable diseases, that's something that doctors are required to report to the public health department.

But when it comes to COVID, we don't ordinarily are not required to disclose your COVID status, but it's also an important public health issue. 

So if your employer can require that you be, that the employer has to worry about the health of your coworkers and the customers and so the employer can say, "We want to make sure that you're not coming to work infected with COVID and at risk to spread it to coworkers and customers."

Or businesses can say to customers, "We don't want you to spread your COVID infection or other infections to our employees or our other customers so we want to make sure that you're healthy when you come into our premises."

...they can set rules now and they can require you to make sure that you either have a negative COVID test or you've been immunized or you can show other evidence you've been infected in the past and now you have antibodies.

But they can require, businesses and employers can require that you prove that you're healthy and that you're not putting other people at risk. There are exceptions.

Important Exceptions to Inquiring About Your Health Status

Pr. Orentlicher: So there are two important exceptions to the freedom of employers or businesses to inquire about your health status. One is if you've got a health reason, you've got a disability that could put you at risk for immunization or you have religious objections to immunization. So there are accommodations that are required up to a point.

In the end, your disability accommodations or your religious accommodations don't mean that the employer or the business has to put their other employees or customers at risk. They have to make reasonable accommodations.

So it may be, let's say you work for a business, a reasonable accommodation might be that you work in an isolated setting, you're the only person in the room, or you wear an N95 mask while you're working or you work at home. So as long as there can be accommodations, or if you're a customer, can we serve you, maybe bring whatever you want to buy, you drive up and we, for pickup and we bring it out to your car. 

We don't, so you don't have to come into the store to do your shopping. So those are the kinds of accommodations that are required. But in the end, if there's no way to allow you to do your job or allow you to be a customer without putting other people at risk, then public health trumps your individual rights.

Can You Lose a Job for Not Being Vaccinated?

Michael: So what you're saying is public health considerations will go above individual desires for not being vaccinated. If the employer cannot accommodate you, you will most likely be let go, if it cannot be accommodated. Is my understanding correct?

Pr. Orentlicher: Yeah. Yes, exactly. Employers are entitled to say, "We want to have a safe workplace or a safe shopping place. We want everybody to be vaccinated." And so there's, like the court case that was just decided by the trial court in Houston, where a major hospital said to all its employees, "You need to be vaccinated."

And some of them, there were employees who objected and they sued and they lost at the trial level. I expect that won't change as it moves through appeal. But yes, if you have a legitimate reason for not being vaccinated, again could be a disability, it could be a religious reason, the employer has to accommodate.

The legal term is it can't impose an undue hardship on the employer or it can frustrate the operation of whatever enterprise. That if it's a hospital delivering healthcare, if you're taking care of patients and you could be infected with COVID and you could spread it, then that doesn't, that can't happen. It's not acceptable in a healthcare setting.

So that's why we tend to see these kinds of mandates first in healthcare settings. But other employers are entitled to require it. And I think airlines, there are some airlines that are requiring vaccinations for new employees and they're entitled to do that.

Even though there are important rights at stake, public health, that's considered such an important interest for the society as a whole that the government's entitled, and also private businesses, to implement public health protections.

The one area where we're seeing courts in this past year, the Supreme Court has overturned some restrictions in New York City and a few other places where they infringed on religious freedoms. Now, normally as that not, as I said before, public health does trump religion. 

However, what the courts were concerned there and said, and then rejected the restrictions on religious activities was because they felt they weren't applying their restrictions in an even-handed way. They were treating religious, like churches or synagogues, differently than they were treating other places where people would gather.

And they said you're entitled to limit people's gathering indoors and requiring them to physically separate and limit capacity and require masks and all those measures, you have to do it in an even-handed way. You can't impose greater burdens on religious organizations than on secular organizations. So that's where we've seen some courts intervene on behalf of individual liberty.

Can You Be Refused to Enter the Store If Not Vaccinated?

Michael: If a business owner discriminates based on the vaccination status, whether to allow or not to allow customers to walk in or not to walk in?

Pr. Orentlicher: Yeah. So if you are a pro, if you have a business and you want to say, "To come into my store, you have to show that you've been immunized," as a general matter the answer is yes, as long as some businesses, not all businesses, but there's a Civil Rights Act from 1964, that applies to what is called public accommodations, privately owned businesses that are open generally to the public, restaurants, hotels and other businesses.

If you're one of those businesses because you're not allowed to discriminate on the basis of religion or race. So again, if you apply it to everybody and you make reasonable accommodations for people with religion or disabilities, don't again, put other people at risk or make it impossible for you to carry out your business.

But let's say I have health reasons or religious reasons for not being immunized, I'll wear an N95 mask when I come into your store. And then this would be a factual question, is the fact that they're wearing an N95 mask provide sufficient protection for employees and other customers?

And if public health experts said, "Yeah, as long as they're wearing an N95 mask, that's safe. That makes for a safe setting." Then they would have to do it. But if it turned out that, "Well, an N95 mask maybe is only 95% or 90% effective." And so you would get down to a factual question.

But the general idea that yes, you can require people to be immunized, yes. 

Now, even though you have the legal right to do that, businesses or most businesses are going to be reluctant, right? They don't want to antagonize, alienate, potential customers. So, a lot of them will try workarounds to try to avoid that kind of a rule.

But if they want to do it, they could do it. I mean, the other thing you're seeing is a lot of states have passed laws prohibiting vaccine passports. So several states have rejected vaccine passports and said that we're not allowing them in our state.

And New York is the one state that I know of so far that has created a vaccine passport program. You can go online and apply for a vaccine passport in New York. The state doesn't require it yet, but this program is for businesses that want to require it. The state has created a program so you can demonstrate that you have the vaccine passport.

But in a lot of other states, the legislature has prohibited vaccine passports. So the fact that a state can do it, doesn't mean they have to do it or will do it. And so we're seeing different policies in different, across the country.

Can You Refuse to Show Proof of COVID-19 Vaccination?

Michael: If someone is asking another person about their COVID vaccination status, can that person refuse to answer?

Pr. Orentlicher: You can always refuse to provide information. Nobody can force you. 

If it's your employer, they can say, "If you don't tell me, then you can't come to work." They can do that. 

Or a store can say, "If you won't tell me, I won't let you in my store." So, you may lose opportunities if you don't disclose your information.

Does It Matter Where You Get the Vaccine?

Michael: Dual citizens, if they have been vaccinated in one country and they're traveling to the US, what's going to happen? Are they considered to be vaccinated citizens or not?

Pr. Orentlicher: Yeah. Well, it would depend if it's a vaccine that has been approved in the United States, then it shouldn't matter where you got the vaccine. The key question is which vaccine did you get?

What Are the Pandemic Fails?

Michael: Let's look back at last year and a half. Where do you think the US Government, US rules, citings, constitution, worked or failed during the pandemic?

Pr. Orentlicher: I think the big problem was implementation. We didn't have the coordinated kind of response we needed. Normally public health measures are done by states. That's where we expect the rules and policies to come from, from state public health agencies.

With travel being so easy now and having a communicable disease if you don't have a national coordinated response, that's a big problem. And the other problem we saw in the early days of COVID was states had to fight each other for the protective equipment for healthcare providers, the masks, the ventilators, and that's not a very effective way to deal with a public health crisis. 

It's a national crisis, to have each state having to fight for the resources it needs. So that was a big failure that we just didn't coordinate the 50 states so that we could maximize our response.

And some states did better than others. 

...people do need to learn more about what their rights are because they often don't realize how much the law is there to protect them.

And when it comes to their privacy and their freedom to decide and the security of their information, there are lots of laws to protect them. And in other healthcare settings, they would be in a much better position to assert those interests.

When we're dealing with public health though, then it's a different ball game. And because of the risk to other people, the law does allow a lot of limitations. So the important thing is to make sure that when public health measures are adopted, that they really are based on science, because our experience when people came back from Africa who were at risk with Ebola, we overreacted there.

And so there are, we do have to be careful that sometimes the government doesn't respond in an irrational way. 

I think making sure that the public, the government authorities, public health officials follow science, that's the most important thing.

And that's getting back to you asking what mistakes were made, that was one of the mistakes, early on when people were discouraged from wearing masks and that was a problem because it turns out masks are important.

And part of it was we had a shortage of masks, but that wasn't the message. The message was you don't need a mask. Not, actually, it would be good if you had a mask and if you can make it yourself, do it. But we have to allocate the masks that we have to the people with the greatest need. And that really hurt when public health officials weren't as honest as they should, and transparent as they should have been.

Michael: Thank you for your time. We really appreciate you speaking to us and our viewers.

When it comes to your health rights during the pandemic, there are exceptions to the health law that concerns public health. If you’ve been asked about COVID vaccination status, as Pr. Orentlicher says, ‘you can always refuse to provide information. Nobody can force you.’ 

However, you should also bear in mind that in the current situation with the pandemic, a business, an employer, or the store are obliged to follow the health law restrictions and state guidelines that concern COVID-19.

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