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VERIFY: What are your rights when it comes to 'vaccine passports'

Social media is full of posts about "vaccine passports" and how they infringe on your rights. So can private companies & schools mandate proof of a vaccine?

Social media is full of posts about so-called "vaccine passports" and how they infringe on your rights.

Let's verify.

The question: Can schools and businesses legally ask you to show proof of vaccination?

"In 1905, the Supreme Court decided whether or not Massachusetts could require a vaccine passport for smallpox and they could. There was an exception for religion," explains labor and employment attorney Mark Landes, Managing Partner at Isaac Wiles.

Landes also focuses on First Amendment litigation. He says that public health law has evolved over time but it states that "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members," as written by Justice John Marshall Harlan in Jacobson v. Massachusetts, 197 U.S. 11 (1905). 

As businesses and schools open up, Landes says exceptions for those who can opt-out of showing their proof of vaccine may come into question.

"If there's a vaccine passport now for COVID, we would expect the U.S. Supreme Court to look hard at whether or not it would have an impact on religion or other First Amendment rights. If you have a reason to not get the vaccine and it turns out you can't use some fundamental right or get access in some fundamental way to a state benefit, that's probably going to be a problem," Landes said.

But he says as the law stands now, private companies can deny you services or access, if they ask you for proof of vaccination and you decline to show it.

"They can require a test, a vaccine passport, or any proof of vaccination if they want unless the laws change," Landes said. "I would predict a lot of people will get the vaccine because they want to see Chris Stapleton or Chance the Rapper or take a cruise. Private businesses can require whatever they need to keep their people safe."

He says the same thing goes for schools, both public and private.

"If schools want to require a vaccine passport, they'll have to provide some kind of exception for religion or disability in the same way an employer will have to allow their employee to opt-out because of religion or disability," Landes said.

As of now, White House press secretary Jen Psaki said the Biden administration would not play a role in this or support a federal system that would require Americans to carry a vaccine credential - even though there are other countries doing this on a national level.

Here in the U.S., much like the shutdowns that happened early on in the pandemic, it'll be left up to states to decide.

"Same thing with the vaccine passport, locals at the moment get to decide what it means, to have a vaccine passport, it rarely impacts the federal sphere," Landes said.

The answer:

So we can verify, yes, under the supreme court ruling, Jacobson v. Massachusetts, private companies and schools can mandate sufficient proof of a vaccine in order to protect community members from an epidemic.

Right now there are two bills in the Ohio House of Representatives that tackle the topic of showing proof of vaccination in H.B. 253 and H.B. 248.