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Is it legal to require vaccinations to travel? Yes, say experts


Vaccine mandates trickled into the U.S. travel sphere last winter, picked up steam in the spring and hit fever pitch over the summer.

To eat at cafes in France or to go to New York City’s Broadway shows, and to fly commercially to Canada, you will need to get vaccinated.

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

Harry Nelson, the founder and CEO of Nelson Hardiman Health-Care Law Firm said that it was fascinating to see how vaccine mandates have been moving at a rapid pace.

According to him, while last month’s U.S. Food and Drug Administration approval for the Pfizer BioNTech vaccine has led to some mandates being enacted, these mandates are also driven by the “increasingly supportive public opinion” of the majority of vaccinated.

Are vaccine mandates legal?

Lawrence O. Gostin (professor at Georgetown Law and faculty director of O’Neill Institute for National and Global Health Law) said yes.

He told CNBC that businesses have the right to demand reasonable safety standards from customers. Just as many companies have requested masking, customers could be asked for proof that they are vaccinated.

He said that mandates can be from government attractions or private companies.

It was something we felt strongly about, even though sometimes it can be difficult to do the right thing.

Kelly Sanders

senior vice president of operations, Highgate Hawaii

“For some high-risk businesses, such as cruise lines and hotels, it is very much in their economic interests to make their customers feel safe and secure — they have every right to do so,” said Gostin. “Similarly, President Biden, who oversees federal properties, could require proof of vaccination for entry to… national parks and federal buildings.”   

Nelson concurs, pointing out that the court has long supported vaccine mandates. However, these have been mostly in relation to school requirements.

He stated that he believes the mandates for vaccines will be upheld.

Vaccine exemptions

Tourists who are not vaccinated and travel to New York City may walk along Broadway’s streets, but cannot attend performances without an exemption.

Getty Images It is easy for the government to deny religious exemptions from vaccines against infectious diseases, according to Douglas Laycock of University of Virginia School of Law.| Getty Images News | Getty Images

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

He wrote that even if religious objections may be sincere, there is a strong interest for the government to override them and insist that all people get vaccinated. This overrides all claims under the state and federal constitutions, or any religious liberty legislation. 

Laycock asked Laycock how far vaccine mandates could be challenged. He wrote, “Unless governments mandating vaccinations don’t defend their rules or the Supreme Court modifies the law, it is probable that the answer will not be far.

Nelson indicated that he believed that the U.S. Supreme Court would allow more religious freedoms to be enacted if it was given the chance.

The next step?

Nelson said that more companies will announce mandates for vaccines after vaccines have been approved by FDA. This is especially true for children aged between 5 and 12.

The vaccine mandate process for hotels has been slow, although that trend is beginning to shift. Elite Island ResortsHighgate Hawaii (which operates seven Hawaiian hotels) and a chain of nine Caribbean resorts, Highgate Hawaii (which operates nine more), have both made mandatory vaccine policy announcements, along with others.

Kelly Sanders (senior vice president of operations at Highgate Hawaii) stated, “We believed strongly that it was right to do.” Sometimes, doing the right thing can be difficult. I expect more hotels to follow.

To be allowed to stay at Alohilani Resort Waikiki Beach in Highgate Hawaii, guests 12 years old and over must have been vaccinated by Oct. 15.

Courtesy of ‘Alohilani Resort Waikiki Beach

Flights may be next, if airlines follow the lead of Qantas’ CEO Alan Joyce, who indicated earlier this month that passengers will be required to be vaccinated on its international flights.  

U.S. officials are debating whether to require vaccinations to fly both domestically and internationally, as reported last week by The Washington Post. Dr. Anthony Fauci, the White House’s chief medical advisor, 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 one his administration announced earlier this week for foreigners traveling into the U.S.

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

No major U.S. airline announced such a policy to date.

Vaccine passports

So-called “vaccine passports” may be on the horizon too, said Nelson, as interest increases for reliable proof of vaccination status.

Nelson said that he believes they will be seen in the hospitality industry and entertainment.

New York City’s Equinox Hotel guests must become immunized starting September 13.

Getty images The White House has ruled out the creation of a federal vaccine passport. However, Nelson stated that he believes they will be more common in states with “the trend towards’red state hostility” to this idea.| Bloomberg | Getty Images

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

He said that he believes the government has a plan to increase public pressure by ensuring that more people become vaccinated. New measures combined with fears over the mortality and hospitalization rates of unvaccinated people will likely lead to more support for restrictions.