Can Marjorie Taylor Greene be asked if she had COVID vaccine? Yes, and businesses can require vaccination proof
Don't rely on Rep. Marjorie Taylor Greene for legal advice. The Georgia Republican on Tuesday declined to tell reporters whether she had received a COVID-19 vaccination citing "her HIPAA rights."
Wrong. Greene has previously used this line about The Health Insurance Portability and Accountability Act (HIPAA) of 1996. Greene's reiteration of it – at a Tuesday press conference she called to discuss her recent 12-hour ban from Twitter for tweeting COVID misinformation – has led to more discussion about HIPAA.
HIPAA is a law protecting patients from having their private health information shared by health care professionals without permission – and experts say it has no bearing on who can ask or answer questions about health status outside a health care setting.
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"HIPAA really focuses on health care providers and their business associates," said Lindsay Wiley, director of the Health Law and Policy Program at American University Washington College of Law, during an interview with USA TODAY. "HIPAA is really more about when your doctor has information, including information about your vaccination status, how can your doctor’s office or hospital use that information, who can they disclose it to, how carefully do they have to protect the data security of that information from data breaches."
As for reporters asking politicians about their vaccination status, that doesn't fall under HIPAA's purview. "HIPAA doesn’t prohibit anyone from asking for information," Wiley said. It regulates how that information is stored and how it’s used going forward after it’s been provided by the individual. And even then only for health care entities and their business associates. It still doesn’t apply to other companies."
Is it legal to ask for proof of COVID-19 vaccination?
At bars, you might get asked to show your ID. If you visit Costco, you can't get in or buy anything without your membership card. Will more Americans soon need to keep their COVID-19 vaccination cards handy to return to normal?
The question has been percolating: Is it legal for a business to even ask for proof that you're vaccinated?
Currently, you don't have to flash your COVID-19 vaccine card in most businesses in order to shop or to get a table. However, businesses are generally free to require that customers show proof of vaccination, sometimes known as a “vaccine passport.”
Legal experts have likened the requirement to a “no shirt, no shoes, no service” policy.
"A business can absolutely ask that question," whether a customer has been vaccinated, Wiley said.
Retailers that have dropped mask rules for vaccinated people have said they don't plan to interrogate people or request their vaccination cards at the door. The growing list includes Walmart, Sam's Club, Costco, Starbucks, Target and CVS.
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Who should track vaccination status?
For the most part, letting consumers go maskless has been on the honor system.
But there are some exceptions. In Oregon, the state's health authority issued guidance last month requiring businesses to verify the vaccination status of people who visited without masks.
In Chicago, businesses can apply for a vaccine exemption to increase capacity at their establishments provided they require patrons to prove they have been fully vaccinated.
And published reports have surfaced showing examples of some small businesses making their own policies and sometimes adding fees for unvaccinated guests. For example, a concert promoter in Florida hosted a show with $18 tickets for vaccinated attendees and $1,000 tickets for unvaccinated concertgoers, reported NBC News last month.
Meanwhile, lawmakers in more than 40 states have introduced legislation – often backed by vaccine skeptics and advanced by Republicans – prohibiting COVID-19 vaccine mandates. Some measures prevent businesses from asking customers for proof of vaccination. The largest number of bills seek to prevent employers from requiring COVID-19 vaccines, USA TODAY has previously reported.
Throughout the pandemic, managing and monitoring customer behavior has proven difficult. Brian Dodge, president of the Retail Industry Leaders Association, said store employees have been at risk by trying to enforce mask policies and that a "patchwork of state and local rules" about masks has created confusion. Shifting retail workers from tracking masks to vaccination status wouldn't be any less complicated.
“That's obviously impractical and impossible to do,” Dodge said in a recent interview with USA TODAY about identifying who is vaccinated and who is not. “They should never have been the mask police, and they cannot be the vaccine police. So it is impossible to confirm the vaccination status of guests.”
A letter sent to the heads of the Centers for Disease Control and Prevention, the U.S. Department of Health and Human Services and the Occupational Safety and Health Administration from groups representing U.S. businesses warned that enforcing policies requiring verification of vaccination status could put workers in dangerous situations.
"Retail and other employees are not equipped to enforce health restrictions and, if they are required to do so, it will not protect them but will subject them to confrontations that put their health and well-being at much greater risk," read an excerpt of the letter.
Dr. Paul Offit, director of the Vaccine Education Center at the Children's Hospital of Philadelphia, said the CDC’s update to mask guidance came too soon. He said there should have been reassurance from the CDC to help consumers feel safer.
In a recent interview with USA TODAY, Offit said one option was if retailers asked anybody who walks into stores unmasked to show proof, “which is burdensome and hard to do. Plus, there’s no doubt will be cheating because you can buy a vaccine certification right off the internet.”
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What qualifies as proof of vaccination
Support among Americans for some form of vaccine verification depends on the type of activity. According to a survey conducted by Gallup in April, 57% of U.S. adults support verification for air travel while 55% back verifying vaccination status for attending a large event like a concert. However, only 40% support showing proof if you want to dine indoors at a restaurant.
While there are laws requiring businesses to make accommodations for people with disabilities and for those who refuse to get vaccinated for religious reasons, establishments can still require customers prove their status.
"It’s newer legal ground but most likely so long as the businesses have a justification and they exempt people based on those reasons, they would most likely be legally permissible," said Alison Hoffman, professor at the University of Pennsylvania Carey Law School and an expert on health law and policy.
The issues facing businesses might be more practical than legal. Hoffman said businesses are on "difficult and somewhat tenuous ground" trying to determine what qualifies as proof of vaccination. The closest available documentation Americans have is the CDC vaccination record card supplied and updated by vaccine providers after doses.
Then there's the challenge of what to do if someone can't offer proof or doesn't want to share that information.
"They need to then decide what they’re going to do next if the person says, 'No I’m not vaccinated' or says, 'I’m not going to answer that question,'" said Wiley. "They need to think through practically, are they then going to offer alternatives like curbside delivery in some cases or, yes you can come in but you have to wear a mask. That's permissible, too."
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Contributing: Daniel Funke, Devon Link and Mike Snider, USA TODAY