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Watch | Yes, businesses can require that you show proof of COVID-19 vaccination with a "COVID vaccine passport": Legally Speaking with Stephanie Haney

3News legal analyst Stephanie Haney explains why "COVID passports" don't violate HIPAA privacy protection and where the government stands on this controversial issue
Credit: wkyc studios
Can places require people to present COVID-19 vaccine "passports," or proof of vaccination, for entry? Legally speaking, yes, according to 3News legal analyst and licensed attorney Stephanie Haney.

CLEVELAND — Legal analysis: Once you’ve decided to get a COVID-19 vaccine, it’s time to start thinking about whether you’re OK with sharing that information and what you might miss out on if you're not.

With a push right now to develop what people are calling "COVID-19 passports" to verify your vaccine status, some places want to require this so-called passport before they’ll let you in to certain places, like airplanes, professional sports arenas, concert venues, and even restaurants.

Legally speaking, this is perfectly acceptable. The idea is a lot like well-known but recently amended "no shirt, no shoes, no mask… no service" policies. Private entities have the right to set rules for who can enjoy their services, and how they can do it, with very few exceptions. And asking for someone's vaccination status is not one of them.

But there's some confusion among people who don't want to have to share their vaccine status in order to enter places they'd like to go, and feel that to ask for this is a violation of their right to privacy concerning their medical records.

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The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is something that keeps coming up in these conversations.

HIPAA protects you from having your medical information shared without your consent. While this is a valuable protection that's been in place for decades, it doesn't apply in these scenarios. 

With these COVID-19 vaccine passports, people are being asked to opt in to sharing their vaccine status in exchange for access to places. Assuming the "passports" aren't used incorrectly by the people who develop them, this is not a situation where your medical information is being shared or sold without your knowledge or approval.

It's also not currently a situation where the government is requiring proof of vaccination before people can access essential services.

Now, it is possible that local, state and federal governments could get on board with this, and require some sort of vaccine passport.

We already see this with required proof of immunizations for things like public school enrollment, with a few well-established exemptions like accommodating religious beliefs or medical conditions that make certain vaccinations unsafe for a particular person.

However, at this time, the official word from the White House is that President Joe Biden's administration doesn’t want to require that kind of proof at the national level.

When asked about the possibility of federally mandated COVID-19 vaccine passports at a press conference on April 6, White House Press Secretary Jen Psaki told reporters:

"The government is not now, nor will we be supporting a system that requires Americans to carry a credential. There will be no federal vaccinations database and no federal mandate requiring everyone to obtain a single vaccination credential.”

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Governor Mike DeWine agrees with the president in Ohio, and COVID vaccine passports been banned by governors' executive orders in both Texas and Florida. But requiring proof of vaccine status is being tested right now in New York with its "Excelsior Pass."

And while the airline industry is generally in favor of requiring this kind of proof from passengers, the World Health Organization (WHO) currently does not recommend COVID vaccine passports for international travel. This is partly due to lack of data about how successful COVID vaccinations are in preventing the spread of this very deadly disease, according to the WHO.

Even so, legally speaking, the next time you attempt to board an airplane, attending a sporting event, see a live show or go out to eat at your favorite restaurant, you very well could be turned away if you refuse to share your vaccine status.

That's true whether you've been vaccinated against COVID-19 or not.

Stephanie Haney is licensed to practice law in both Ohio and California.

The information in this article is provided for general informational purposes only. None of the information in this article is offered, nor should it be construed, as legal advice on any matter.

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