Is it authorized to require vaccinations to journey? Sure, say consultants

Vaccine mandates reached the U.S. travel world last winter, picked up speed in the spring, and hit a fever in the summer.

Vaccinations are now necessary to eat in cafes in France, watch a Broadway show in New York City and soon to fly commercially in Canada.

Although mandates expected for cruises and international travel, the pace and scope of activities they now cover – from booking group tours for overnight stays in hotels – surprised industry experts.

“It was interesting to see vaccine mandates accelerate rapidly,” said Harry Nelson, founder of Nelson Hardiman’s law firm.

He said that while the US Food and Drug Administration’s full approval of the Pfizer BioNTech vaccine last month sparked some mandates, it was also “fueled by the increasingly supportive public opinion of the vaccinated majority.”

Are vaccination requirements legal?

Yes, said Lawrence O. Gostin, Professor in Georgetown Law and Faculty Director of the O’Neill Institute for National and Global Health Law.

“Companies have full authority to demand adequate safety standards for customers,” he told CNBC. “Just as many companies have requested masking, they could also require proof of vaccination.”

This applies regardless of whether mandates come from private companies or government attractions such as the Grand Canyon or tours of the White House, he said.

We believed it was the right thing to do, and sometimes it is hard to do the right thing.

Kelly Sanders

Senior Vice President of Operations, Highgate Hawaii

“For some high-risk companies like cruise lines and hotels, it is very much in their economic interest that their customers feel safe and secure – they have every right to do so,” said Gostin. “Similarly, President Biden, who oversees federal property, could require proof of vaccination for entry into … national parks and federal buildings.”

Nelson agrees, adding that there is a long history of courts upholding vaccine mandates, although most of them were related to school requirements.

“I expect most of the vaccine mandates will pass,” he said.

Vaccine exemptions

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

Gostin said public and private corporations “likely need to allow both medical and religious exemptions,” but they can be “narrow and difficult to come by”.

United Airlines seems to be taking this approach. Employees granted religious exemptions to the airline’s recently announced vaccination mandate will be granted temporarily unpaid leave until next month.

Unvaccinated tourists traveling to New York City can walk the streets near Broadway, but without exception they cannot attend shows.

Spencer Platt | Getty Images News | Getty Images

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

“Even if religious objections are sincere, the government has a compelling interest in overriding them and insisting that everyone be vaccinated,” he wrote. “And that overrides any claim under state or federal constitutions or religious freedom laws.”

Regarding how far challenges with vaccine mandates can go, Laycock wrote, “If governments that mandate vaccines fail to defend their rules or the Supreme Court changes the law, the answer is likely, ‘Not far’.”

Nelson said he believed a majority in the US Supreme Court would welcome the opportunity to articulate broader personal religious freedoms if given the opportunity.

What’s next?

Expect more companies to post vaccine mandates, Nelson said, especially after vaccines were approved by the FDA for children ages 5 to 12, and possibly even younger.

Hotels have been slow to enter the vaccination mandate battle, 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, have both announced mandatory vaccination policies.

“We believed it 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 assume that more (hotels) will follow at some point.”

Starting October 15, guests 12 and older must be vaccinated to stay at the ‘Alohilani Resort Waikiki Beach in Highgate Hawaii.

Courtesy of ‘Alohilani Resort Waikiki Beach

Flights could be the next if airlines follow the example of Qantas’ CEO Alan Joyce, who pointed out earlier this month that Passengers need to be vaccinated on its international flights.

US officials are discussing whether to make vaccinations mandatory at home and abroad, as of last week. reported The Washington Post. Dr. Anthony Fauci, the White House’s senior medical advisor, said this month he would likely support a vaccination mandate for air travel.

Georgetown’s Gostin said he could expect President Biden to issue a vaccine mandate for interstate or international travel, similar to what his administration announced earlier this week for foreigners entering the United States

“But the airlines could also set this requirement themselves,” he said.

So far, no major US airline has announced such a policy.

Vaccination records

So-called “vaccination passports” could also be in sight, said Nelson, as the interest in reliable proof of vaccination status is increasing.

“I think we will see them across the hotel and entertainment industry,” he said.

Starting September 13th, guests at the New York Equinox Hotel must be vaccinated.

Jeenah moon | Bloomberg | Getty Images

The White House ruled out plans to issue a federal vaccine passport last April, but Nelson said he believes that given the “trend of” red “states’ hostility to the concept, they are more likely to show up in” blue “states.”

“I have a feeling that the government expects that the more ambivalent and reluctant the vaccination, the stronger the public pressure,” he said. “New measures, coupled with fears of hospitalization and unvaccinated mortality rates, are likely to lead to even more support for further restrictions.”