Per yesterday's post, I recall that a lot of people are discussing how denial of service due to vaccination status would be a HIPAA violation. I don't think that is the case. As far as I have read, a business inquiring about your health status is not generally a HIPAA violation. If that business disclosed that information to a 3rd party then it WOULD be a HIPAA violation.
HIPAA is meant to keep your private medical information private. The issue in HIPAA is not whether the information can be known, it is about WHO is authorized to know this information. In regards to a public setting I believe this example would be most clear:
You are in line to get into a bar. Security at the bar asks you, in front of the line, about your vaccine status. You explain that you do not wish to have that information disclosed in public. He declares you to be "unvaccinated" and turns you away, in front of the crowd. That is a HIPAA violation as he disclosed your medical status to 3rd parties who have no business knowing it. The messy part here is that the act of turning you away (or letting you in) in front of 3rd parties may be inevitable, that is the mere asking the question in a public setting may be a HIPAA violation.
Now the scenario may change if security takes each person aside, say into a room and asks the question. And with that being a one way room with access to both the interior of the building AND the exit, your disclosure as to whether you are vaccinated or not can reasonably be 'hidden" from 3rd parties as everyone saw you enter but only those really interested know you left (or not). Of course this is a hypothetical. The point being that the ask is not in and of itself a HIPAA violation. And some people online think it is.
The actual relevant law is the ADA. The ADA prohibits discrimination against those with actual or perceived disabilities.
(2 1) Disability
The term "disability" means, with respect to an individual
(I A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(ii B) a record of such an impairment; or
(iii C) being regarded as having such an impairment (as described in paragraph (3)).
Now note section 3: "being regarded as having an impairment". It could be argued that with the Fed and States acting as if having a normal immune system is an "impairment" one could argue that they have created a class of disability. I'm not saying that they have, only that it can be argued as such.
(2) Major Life Activities
(A) In general
For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
(B) Major bodily functions
For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
(3) Regarded as having such an impairment
For purposes of paragraph (1)(C):
(A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. [My underlines]
Now notice that "functions of the immune system" and "normal cell growth" and "respiratory".
Note that the provision notes actual or PERCEIVED physical impairment. So the fact that a business may "perceive" that you have an "immune deficiency disability" and denies you service based on that perception could be a violation of the ADA. And note that so long as you are not "vaccinated" you would have this "disability". So that 6 month exception would not apply.
Now onto public services:
Sec. 12131. Definitions
As used in this subchapter:
(1) Public entity
The term "public entity" means
(A) any State or local government;
(B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and
(C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 24102(4) of title 49).
(2) Qualified individual with a disability
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
So no public entity, that's legal speak for your government agency can discriminate against you for having a disability including excluding you from services, programs and activities due to your immune system being "unvaccinated" and therefore "disabled".
Now private entities:
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
And
Sec. 12182. Prohibition of discrimination by public accommodations
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
(1) General prohibition
(A) Activities
(i) Denial of participation
It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.
(ii) Participation in unequal benefit
It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
(iii) Separate benefit
It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
(iv) Individual or class of individuals
For purposes of clauses (i) through (iii) of this subparagraph, the term "individual or class of individuals" refers to the clients or customers of the covered public accommodation that enters into the contractual, licensing or other arrangement.
In essence, no private business may deny access or services to "disabled" individuals. If the state wants to define those who are not vaccinated as somehow "compromised" then those persons are, under the ADA, disabled. Hence any attempts to deny service or otherwise create special rules for them is unlawful.
Now personally, I don't think we have to go here. This particular disease is not very bad when stacked up against some others out there. Yes, for those who are particularly vulnerable due to issues like diabetes, they may wish to look into the pros and cons of a vaccine. But to outright create a two-tier society (the masked and the vaccinated) is plainly unconstitutional and a violation of the ADA and Brown v Board abolishing separate but equal statutes.
