ROCHESTER, NY — Life is finally beginning to feel a bit more normal as our long journey out of the pandemic is hopefully nearing an end. Just last week, New York Gov. Andrew Cuomo adopted the CDC recommendations regarding masks, and lifted many of the capacity restrictions that have been in place for well over a year. However, many medical experts continue to say that the only way to truly put the pandemic behind us is for a significant portion of the population to get vaccinated so “herd immunity” can be achieved.
Currently, a little over 50% of adults over 18 in New York have been fully vaccinated. However, polls show that anywhere from 15% to 30% of the population are either vaccine hesitant, or openly hostile to getting vaccinated. Putting politics aside, the refusal of a significant portion of the population to get vaccinated puts both public and private businesses and venues in a difficult position as they try to navigate a return to normalcy.
Many states, including New York, have already made the decision to “incentivize” vaccinations to encourage more people to take the shot. Whether it is beer or a glass of wine in exchange for rolling up your sleeve or allowing access to more events and venues if you are fully vaccinated, the idea is to get as many people vaccinated by whatever means necessary.
Despite such efforts, there will undoubtedly be some portion of the population that will simply refuse to be vaccinated — regardless of any incentives. As we are still in the stage of encouraging as many people as possible to get vaccinated, private businesses and government have largely avoided requiring or demanding that someone be vaccinated. However, as more employers pivot away from working remotely, the question of how to handle unvaccinated employees will come to a head.
There is no national or statewide vaccine mandate, and it is highly unlikely that one will be issued. However, as far back as 1905, the United States Supreme Court in Jacobson v. Massachusetts held that states have a right to protect against an epidemic. That case involved a law mandating smallpox vaccinations, and upholding fines for those who refused to get one.
While most businesses would prefer that employees voluntarily get vaccinated, do they have the right to require it? While private businesses may be hesitant to require vaccines, they generally have the right to do so. Vaccination status is not a protected class for private employers, and they would only be required to make accommodations for those individuals who cannot be vaccinated for legitimate health reasons.
Similarly, more and more colleges and universities (including SUNY) have announced that in order for students to return for in-person classes in the fall, they will need to show proof of vaccination. Colleges have wide discretion in taking action to protect the health and safety of its student population, and although they generally must allow for medical and religious exemptions, it is unlikely that the legal challenges to these vaccination requirements will be successful.
Lawsuits have also been threatened against New York State or other municipalities that implement policies that treat vaccinated people differently than unvaccinated people. For example, Erie County Executive Mark Poloncarz has announced that the county — which owns Highmark Stadium — will require all attendees at Bills games in the fall to be fully vaccinated. The county’s position is that while individuals have a right to decide not to get the vaccination, the Constitution does not provide a right to attend a football game. It is likely that concert venues and other mass-gathering events will follow suit in some form. While being shut out of such events will undoubtedly anger many who choose not to get vaccinated, again, their legal recourses will be extremely limited as they are simply not being deprived of a protected right.
Some have claimed that requiring someone to show proof of vaccination before entering an event would be a violation of HIPAA. They allege that requiring production of personal medical data as a prerequisite to gaining entry runs afoul of the statute. This argument is misplaced. Attendees would be voluntarily showing proof of vaccination, which is clearly not a HIPAA violation.
Inevitably, there will be at least some legal challenges to policies, businesses or public entities that require vaccination to participate in or attend functions and activities. However, such challenges are largely going to be unsuccessful.
Colin D. Ramsey is a Partner in Underberg & Kessler’s Litigation Department. He concentrates his practice in civil litigation with an emphasis on insurance defense and business torts.