- The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is often inaccurately cited by those arguing that places of business can't require customers to show proof of vaccination.
- Federal law doesn't restrict private businesses from asking for proof of vaccination, although some states may pass their own laws on the issue.
- HIPAA, generally, applies to healthcare plans and healthcare providers, not grocery or other stores.
- Asking someone to show proof of vaccination constitutes neither “protected health information” under HIPAA nor disability-related information under the Americans with Disabilities Act.
HIPAA might be one of the most widely and inaccurately cited acronyms of the 2020s so far.
“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient’s consent or knowledge,” according to the Centers for Disease Control and Prevention (CDC).
That doesn’t mean your local privately-owned business can’t ask for proof that you’ve had the Pfizer/BioNTech, Moderna, or Johnson & Johnson COVID-19 vaccines, despite what some people may interpret the law to mean.
The U.S. Department of Health and Human Services has dedicated part of its website to HIPAA and COVID-19, taking an authoritative stance on the law often cited inaccurately by many people.
From face masks to vaccines, private businesses continue to seek guidance from federal, state, and local governments about what to tell people they need to do to keep their employees and customers safe as a very real virus continues to spread around the globe.
But in terms of what violates HIPAA, most people who cite the law are arguing with the wrong people.
How HIPAA works
Joyce Smithey, founder and partner at the employment and labor law firm Smithey Law Group, said HIPAA, generally, applies to healthcare plans and healthcare providers — not grocery or other stores.
“If a private business is outside of a healthcare setting, HIPAA will not prevent it from asking for proof of vaccination status,” Smithey told Healthline. “Federal law doesn't restrict private businesses from asking for proof of vaccination, although some states may pass their own laws on the issue.”
In Florida, state lawmakers passed legislation that banned businesses from asking for proof if a person has been vaccinated.
But Norwegian Cruise Lines is in talks with the governor’s office to change that, because it wants to set sail from two Florida ports while requiring guests to have proof they’re fully vaccinated, according to the Associated Press.
And those ready with Facebook live broadcasts trying to storm a cruise ship will need to find a new legal battle cry, because public health departments across the country are enacting policies that they know could and will trigger lawsuits from people who will allege their freedoms are being infringed.
Elizabeth Litten, a partner at the law firm Fox Rothschild in charge of privacy and HIPAA, said HIPAA isn’t about data privacy.
“It does not generally apply to private businesses because most private businesses are not covered entities and do not create, receive, maintain, or transmit protected health information,” Litten said.
Can business owners bar you from their premises if you don’t comply with their minimum standards? Yes, because they absolutely have the right.
Businesses commonly impose rules and restrictions on patrons
“No shirt, no shoes, no service” is commonly displayed at convenience stores and gas stations. “We reserve the right to refuse service to anyone” is a common one at bars and restaurants.
Additionally, dance clubs and country clubs legally and regularly impose dress codes on their would-be patrons.
While the motivations and applications of these slogans are sometimes dubious, ones enacted on recommendation of the county health department — which also regulates bars, restaurants, and many other places that serve food or alcohol — aren’t immediately a violation of what people have determined their “rights.”
If you demand to be able to go into a private business not covering a part of your body they’ve deemed offensive — in this case your nose and mouth during a respiratory pandemic — then you’re in violation of their basic dress code.
Harry Nelson, founder and managing partner of healthcare law firm Nelson Hardiman and author of “From ObamaCare To TrumpCare: Why You Should Care,” said the federal government has opined that asking someone to show proof of vaccination constitutes neither “protected health information” under HIPAA nor disability-related information under the Americans with Disabilities Act.
“At the same time, the federal government has made it clear that it is not going to establish a national database or vaccine passport. So private businesses are on their own and subject to state law,” Nelson said.
Meanwhile, a few states, including Texas, Montana, and Florida, have put statewide bans on vaccine passports and issued executive orders that limit private businesses from requiring proof of vaccination status.
Almost 20 states have limited state government from requiring proof of vaccination status. Instead, they're letting private businesses make their own decisions, while other states have placed no limits on state government or private business inquiries about vaccination status, Nelson said.
On the other hand, those adamantly opposing getting the COVID-19 vaccine for nonmedical reasons are waning in their ranks as growing scientific evidence shows that negative side effects from the vaccines are rare.
“We are seeing an ongoing erosion of vaccine resistance from reluctant or ambivalent people, and we expect the anti-COVID-19-vax community to continue to shrink as a consequence of pressure from employers, peer pressure, [and] incentives for vaccinated people to travel more freely and abandon masks,” Nelson said.
“At the end of the day, there will continue to be an anti-vax contingent who hold onto conspiracy theories and ignore the science, but the evidence suggests they will be a shrinking pool of people,” he said.