Florida Governor Ron DeStantis issued an executive order at the end of March 2021 forbidding businesses from requiring customers to show proof of Covid-19 vaccination in order to get service. The executive order also barred any government agency in Florida from issuing such documentation for the purpose of providing proof of vaccinations.
The only enforcement mechanism is that businesses that don’t comply would be ineligible for state contracts or funding. However, the order does not stop restaurants and other retail stores from using other health measures recommended by state and federal health officials. The governor justified his order on the grounds that “vaccination passports reduce individual freedom and will harm patient privacy.”
Practical Health Concerns
The governor’s order will only endanger public health. Many people may skip taking the vaccine if they don’t have to provide proof of vaccination. This executive order will encourage and enable people to avoid vaccination even though it would safer to take it. Indeed, Nova Southeastern University has scrapped plans for mandatory vaccination prior to reopening its doors for the fall semester.
The other risk is that it will make it more difficult to trace the virus. If vaccination passports are illegal, state authorities will not be able to determine which businesses the virus may have spread through and which businesses did not. Safety measures are not always popular but they are often critical in keeping the public safe. Governor DeStantis is ignoring obvious safety risks in favor of populist sentiment that will only endanger more lives.
Practical Business Concerns
Banning vaccination passports also carries unknown consequences for businesses. The first Covid-19 lawsuits have already been filed. Businesses will need evidence to fight back against these negligence lawsuits. This executive order will effectively deprive businesses of an important tool to fight back. Indeed, nursing homes especially will be hit hard with these kinds of lawsuits and will certainly require proof of vaccination to stay in business and to keep their residents safe.
Is this Executive Order Constitutional?
The governor’s order was made without any input by the state legislature. The governor may have overstepped his powers by including a provision stripping businesses of state contracts or state funding. The “power of the purse” typically resides in the legislature and so any appropriation of funds without the explicit consent of lawmakers may be a violation of the separation of powers.
The governor’s order may also be superseded if and when it conflicts with federal or even international law. Airlines and cruise ships are subject to federal and maritime law. The federal government has not required vaccination passports for those traveling between states or coming into the United States, but such federal laws may be enacted at any time as the country prepares to fully reopen this summer. If there is a conflict between Washington DC and Florida regarding vaccination passports at airports and seaports, the former will almost certainly prevail.
Notably, many of these anti-health orders passed by certain governors are in somewhat of a legal paradox. This includes the Texas anti-mask mandate and Governor DeStantis’s anti-vaccination passport order here. Such executive orders are based on emergency powers that are presumably necessary because of the Covid-19 pandemic. However, these kind of anti-health orders are measures that prohibit local governments and businesses from enacting health policies that would protect their citizens, employees, or customers. It’s questionable whether prohibiting local governments and businesses from protecting people from Covid-19 can be justified by Covid-19.
For example, suppose that after 9/11 a state governor issues an executive order prohibiting airlines from hiring security guards. Now suppose this governor had based this ban on security guards on the need for increased security after a major terrorist attack. This hypothetical order would make no sense because banning security guards is the opposite of increased security.
The same is true with these orders – these governors are enacting laws that make it harder to stop Covid in the same of fighting the pandemic. But due to the Uncivil War that the nation has been in the last several years, these orders are potentially popular with certain parts of the country even if they are logically nonsensical.
Can a Lawyer Help Me If I Am Denied Service In a Business?
If you are denied service in a business or store, a civil rights lawyer in your area can help determine if there was any unlawful discrimination and/or violation of state laws. If you are a business owner, a business attorney can provide more details on your right to refuse service.