Travel vaccine mandates are legal in the US — and more are likely to come

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Vaccination mandates trickled into the US travel scene last winter, picked up steam in the spring and reached a fever pitch in the summer.

Vaccination shots are now needed to eat in cafes in France, to see a Broadway show in New York City and soon to fly commercially in Canada.

While mandates were expected for cruises and international travel, the pace and scope of the activities they now cover – from booking group travel to staying in hotels – has surprised industry experts.

“It was interesting to see the marked acceleration of vaccine mandates,” said Harry Nelson, founder of health care law firm Nelson Hardiman.

He said that while the full approval of the Pfizer-BioNTech vaccine by the US Food and Drug Administration last month led to a number of mandates, they are also “driven by the growing public support of the vaccinated majority.”

Are vaccine mandates legal?

Yes, said Lawrence O. Gostin, a professor at Georgetown Law and the faculty director of the O’Neill Institute for National and Global Health Law.

“Companies have full power to demand reasonable safety standards for customers,” he told CNBC. “Just as many companies require masks, they can also ask for a vaccination certificate.”

That’s true whether the mandates come from private companies or government-owned attractions like the Grand Canyon or White House tours, he said.

We felt strongly that this was the right thing to do, and sometimes it’s hard to do the right thing.
Kelly Sanders
senior vice president of operations, Highgate Hawaii

“For some high-risk companies, such as cruise lines and hotels, it’s in their economic interest to make their customers feel safe — they have every right to do so,” Gostin said. “Likewise, President Biden, who oversees federal properties, may require a vaccination certificate to access … national parks and federal buildings.”

Nelson agrees, adding that there is a long history of courts enforcing vaccine mandates, although those have mostly been in the context of school requirements.

“I expect the vaccine mandates to hold for the most part,” he said.

Vaccine Exemptions

The next big debate could be the dilutive effect vaccine exemptions can have on vaccine mandates.

Gostin said public and private companies “will probably need to allow both medical and religious exemptions,” but they can be “narrow and hard to get.”

United Airlines seems to be taking that approach. Personnel who have received religious exemptions from the recently announced mandate to vaccinate workers will be on temporary unpaid leave starting next month.

The government has an “easy case” of denying religious exemptions for infectious disease vaccines, Douglas Laycock, a professor at the University of Virginia School of Law, wrote in an article published last week on Australian news site The Conversation.

“Even if religious objections are genuine, the government has a compelling interest in overturning them and pushing for everyone to be vaccinated,” he wrote. “And that takes precedence over any claim under state or federal constitutions or religious liberty law.”

About how far vaccine mandate challenges can go, Laycock wrote, “Unless vaccine-mandating governments don’t defend their rules, or the Supreme Court changes the law, the answer is likely, ‘Not far.'”

Nelson said he believes a majority of the US Supreme Court would welcome the opportunity to articulate wider personal religious freedoms if given the chance.

What’s next?

Expect more companies to announce vaccine mandates, Nelson said, especially after vaccines are approved by the FDA for children ages 5-12, and eventually even younger children.

Hotels are slow to enter the battle for the vaccine mandate, but that is beginning to change. Elite Island Resorts, which operates nine resorts in the Caribbean, and Highgate Hawaii, which operates seven hotels in Hawaii, both announced mandatory vaccine policies, as did others.

“We believed strongly that this was the right thing to do, and sometimes it’s hard to do the right thing,” said Kelly Sanders, senior vice president of operations for Highgate Hawaii. “I expect that more (hotels) will eventually follow.”

Flights could be next, if airlines follow the lead of Qantas CEO Alan Joyce, who earlier this month advised passengers to be vaccinated on their international flights.

US officials are debating whether vaccinations are necessary to fly both domestically and internationally, as reported by The Washington Post last week. dr. Anthony Fauci, the White House’s chief medical adviser, said this month he would likely support a vaccine mandate for air travel.

Georgetown’s Gostin said he could foresee President Biden issuing a vaccine mandate for interstate or international travel, similar to the mandate his administration announced earlier this week for foreigners traveling to the U.S.

“But airlines could also make this requirement themselves,” the organization said.

To date, no major US airline has announced such a policy.

Vaccine Passports

So-called “vaccine passports” may also appear on the horizon, Nelson said, as interest in reliable evidence of vaccination status grows.

“I think we’re going to see them in the hospitality and entertainment industry,” he said.

The White House ruled out plans to create a federal vaccine passport last April, but Nelson said he thinks they will be more likely to appear in “blue” states given “the trend of “red” state hostility to the concept.”

“I feel the government is counting on that as more ambivalent and unwilling people get vaccinated, the public pressure will be greater,” he said. “New measures, coupled with fears of hospitalization and death rates among the unvaccinated, are likely to lead to even more support for more restrictions.”

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