Proof of Vaccination: Facts & Fictions

In some circles, including by an infographic that spread on social media, it has been alleged that businesses and organizations cannot legally ask for proof of vaccination from an individual, either for entry or certain allowances like un-masking.   

Firstly, some believe that the Fourth Amendment right to freedom from “unreasonable searches and seizures” protects people from having to share proof of vaccination. This is a misunderstanding of the Constitution.  

Most businesses asking for vaccine “passports” merely require a voluntary disclosure of vaccination status or documentation in order to participate in things like entering a building without a mask. This constitutes the same business rights as any other “right to refuse service,” and is in no way considered an unreasonable search.  

In the case of individuals who are medically unable to receive the vaccine, the Americans with Disabilities Act may apply to businesses by requiring them to offer “reasonable accommodations.” Even then, the ADA wouldn’t necessarily require a business to offer the exact same accommodations to these individuals as vaccinated individuals, perhaps offering alternatives like allowing them to enter while wearing a facial covering. In any case the allowance wouldn’t apply to individuals who opted not to receive the vaccine for nonmedical reasons.  

Another question some have is — is a business or government institution’s refusal of services or entry based on vaccination status discrimination? Unvaccinated people are not a protected classification of people under the law, and therefore refusal of services based on that status is not discrimination in any sense.  

In terms of government institutions, there is already over a century of precedent for government entities like public schools and the military requiring vaccination documentation. Vaccines are considered an important element of public health, and as a result their refusal is not protected by any Civil Rights law.  

Although President Biden has said that there will be no federal “vaccination passport,” there is precedent for these systems nationally, and one has already been adopted in New York.  

By Ardea C. Eichner