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Covid vaccination requirements and the law.

By Curt Anderson
July 20, 2021 12:16 pm
Category: Law

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The Fourth Amendment does not prohibit questions about vaccination status
Some people claim that 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.

This is false. It does not violate the Fourth Amendment (protection against unreasonable searches and seizures) or the 1964 Civil Rights Act (laws against discrimination based on race, color, religion, sex) for a business to ask customers or employees for proof of vaccination, according to legal experts. However, states may prohibit businesses from requiring proof of vaccination for service, as Florida has done.

HIPAA does not prohibit most questions about vaccination status
Another area of confusion are Health Insurance Portability and Accountability Act (HIPAA) laws. A couple of months ago, Rep. Marjorie Taylor Greene, (R-Ga) was asked whether she had been vaccinated, as she had refused to wear a mask on the House floor in breach of House rules. Greene told reporters that asking her about her vaccine status was a HIPAA violation, but this was not correct as HIPAA does not apply in such situations.

Contrary to popular belief, HIPAA does not provide protection from questions in in every kind of situation. In addition, not all individuals and organizations are required to comply with it. Only certain individuals and organizations with access to your medical information are subject to the HIPAA Privacy Rule, such as healthcare providers, health plans, such as health insurance companies and health maintenance organizations.

Yes, the boss can require employees to be vaccinated
Employers can legally require COVID-19 vaccination for employees to re-enter the workplace and can provide incentives to encourage employees to get a shot, according to new guidance issued by the Equal Employment Opportunity Commission.

Companies are still required to provide reasonable accommodations for employees who are exempt from mandatory immunization based on the Americans with Disabilities Act, Title VII of the Civil Rights Act and other federal laws.

Can we treat the unvaccinated like pariahs?
In the same way that rate of cigarette smoking dropped from about 45% of the US adult population to about 15% now, in part because of various prohibitions against smoking in public places, society needs to place similar pressure on the unvaccinated.

We are already on that path. Workplaces, colleges, medical offices, senior living centers, sports arenas, theatres, cruise ships among other places and situations are inquiring about and/or requiring Covid vaccination. Covid vaccination is required to visit some countries.

In the same way that smokers who have long known that smoking is unhealthy needed the extra incentive of being inconvenienced by smoking ordinances, etc. to kick the habit, the unvaccinated need to miss out on certain good things in life (including a job) until they are vaccinated.


Cited and related links:

  1. apnews.com
  2. hipaajournal.com
  3. verywellhealth.com
  4. webmd.com

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Comments on "Covid vaccination requirements and the law.":

  1. by Curt Anderson on July 20, 2021 8:37 pm
    This exchange happened today unbeknownst to me when I posted the above. MTG again mistakenly claimed it was a HIPAA violation to ask about her Covid vaccination status.
    hillreporter.com


  2. by HatetheSwamp on July 21, 2021 4:51 am
    It does not violate the Fourth Amendment (protection against unreasonable searches and seizures) or the 1964 Civil Rights Act (laws against discrimination based on race, color, religion, sex) for a business to ask customers or employees for proof of vaccination, according to legal experts. However, states may prohibit businesses from requiring proof of vaccination for service, as Florida has done.

    How do you know? Have the courts adjudicated this?


  3. by Curt Anderson on July 21, 2021 8:37 am
    Because I paid attention in junior high school.

    The Fourth Amendment applies to the government, not to the reporter or other non-governmental people who might ask.

    The unvaccinated are not a protected class therefore that status alone doesnt provide special civil rights protections.

    Anyway I provided links to authoritative sources that were scrutinized by legal experts.


  4. by HatetheSwamp on July 21, 2021 9:32 am
    Don't you suspect that this is might be revisited by the courts?


  5. by Curt Anderson on July 21, 2021 10:05 am
    No, I don't suspect that the courts will be revisiting this. But you apparently do. Why do you think what I said regarding the 4th amendment, the HIPAA rules or anything else as it pertains to the unvaccinated do will become an issue in the courts?


  6. by oldedude on July 25, 2021 6:04 pm
    "Contrary to popular belief, HIPAA does not provide protection from questions in in every kind of situation. In addition, not all individuals and organizations are required to comply with it. Only certain individuals and organizations with access to your medical information are subject to the HIPAA Privacy Rule, such as healthcare providers, health plans, such as health insurance companies and health maintenance organizations."

    If that's the case, I want to see your last gyno exam. Or allow employers to ask if a potential employee has ever had an abortion or if they are on any sort of birth control. Those seem to fit inside your "theory" about HIPAA requirements.


  7. by oldedude on July 25, 2021 6:09 pm
    "The Fourth Amendment applies to the government, not to the reporter or other non-governmental people who might ask."
    Wrong. It applies to numerous entities. Private Schools (NGO)have to follow 4th Amendment issues, as do supers of apartment buildings just to name two.
    Honestly, WTF are you getting your information? A Cracker Jack box? One of the reasons I haven't posted much is because of the grossly inaccurate information that you demand to be true, when all it would take is to get off your arse and look at something other than Indy's cartoon network.


  8. by Curt Anderson on July 25, 2021 9:34 pm
    "The Fourth Amendment applies to the government, not to the reporter or other non-governmental people who might ask." --Me

    Wrong. It applies to numerous entities. Private Schools (NGO)have to follow 4th Amendment issues, as do supers of apartment buildings just to name two.
    Honestly, WTF are you getting your information? A Cracker Jack box? --OD


    I provided my information sources as links. Btw, if I did cite a Cracker Jacks box, that would be one more source than you have provided supporting your claims.

    Regarding apartment supers, landlords can ask prospective tenants all sorts of prying questions including references. As a landlord I know. In some situations--such as a health risk to others--it's even permissible to ask about vaccination status.

    "State laws establish vaccination requirements for school children. These laws often apply not only to children attending public schools but also to those attending private schools and day care facilities." Obviously if they can require vaccinations, they can ask about vaccination status.

    "In short, the EEOC's [U.S. Equal Employment Opportunity Commission's] new guidance says yes, [independent] schools can mandate that their employees be vaccinated, subject to some potential exceptions relating to compliance with disability and religious antidiscrimination and accommodation laws." Again private schools can ask.

    "Absent some other state law restriction, private schools will usually have the discretion to set admissions or enrollment criteria that can include mandatory vaccinations for students. By doing so they are not forcing anyone to be vaccinated, only imposing a consequence or denying a benefit of attending that school."

    "The Fourth Amendment only protects against searches and seizures conducted by the government or pursuant to governmental direction. Surveillance and investigatory actions taken by strictly private persons, such as private investigators, suspicious spouses, or nosey neighbors, aren't governed by the Fourth Amendment."

    Can a landlord ask about your vaccination status?
    “The short answer is, most likely yes,” said Wendy Parmet, a law professor and director of the Center for Health Policy and Law at Northeastern University.

    A reporter, a doctor, an employer, the NFL, a private school, me or even police departments can ASK about a person's vaccination status. That is not a Fourth Amendment or a HIPAA issue. However, a person is not required to answer, although refusing to answer may cause a person to lose some benefit such as employment or school admission.
    cdc.gov
    venable.com
    jdsupra.com
    findlaw.com


  9. by Curt Anderson on July 25, 2021 9:52 pm
    "Contrary to popular belief, HIPAA does not provide protection from questions in in every kind of situation. In addition, not all individuals and organizations are required to comply with it. Only certain individuals and organizations with access to your medical information are subject to the HIPAA Privacy Rule, such as healthcare providers, health plans, such as health insurance companies and health maintenance organizations."

    If that's the case, I want to see your last gyno exam. Or allow employers to ask if a potential employee has ever had an abortion or if they are on any sort of birth control. Those seem to fit inside your "theory" about HIPAA requirements.--OD


    You just asked. You didn't violate HIPAA. Thanks for making my point. Notice that I am not obliged to answer you.

    "Congress enacted the Pregnancy Discrimination Act (PDA) in 1978 to make clear that discrimination based on pregnancy, childbirth, or related medical conditions is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964 (Title VII)...

    ...Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.

    [The] PDA covers all aspects of pregnancy and all aspects of employment, including hiring, firing, promotion, health insurance benefits, and treatment in comparison with non-pregnant persons similar in their ability or inability to work."

    eeoc.gov


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