In Pro-Business Texas, Can Abbott Ban ‘Vaccine Passport’ Requirements For Customers?

A new law punishes businesses that require proof of COVID-19 vaccination from patrons, but a lawsuit could be on the horizon.

By Jill Ament & Caroline CovingtonJune 10, 2021 11:29 am, , ,

Texas Gov. Greg Abbott t his week signed a measure that makes it illegal for private businesses to require patrons to show proof of a COVID-19 vaccination.

For some, the moved seemed controversial in a state known for its pro-business stance. It has also led to some complications for businesses like cruise ship operators that are concerned about following Centers for Disease Control and Prevention guidelines, traveling to ports with different COVID-19 rules and having unvaccinated people on a vessel.

University of Houston-Downtown business law professor Dietrich von Biedenfeld told Texas Standard that Abbott does have the authority to bar so-called vaccine passports. That’s because federal law only goes as far as allowing businesses to require vaccinations from their employees – not their patrons.

“One of the challenges is the federal government’s failure to come up with a national or unified standard on what vaccine permissions or requirements can be allowed outside of the employment relationships,” von Biedenfeld said. “This is a new sphere.”

He says Abbott used the legislature to build the law against vaccine passports, and will use state agencies within the executive branch to enforce it. Enforcement will include revoking permits for businesses that require vaccinations from patrons.

Von Biedenfeld expects a legal battle over the law, especially if the cruise industry can’t come to a compromise with the state. He says the 2018 Masterpiece Cake Shop Ltd. v. Colorado Civil Rights Commission case could offer some clue about the legal future of Texas’ law. The court ultimately reversed Colorado’s decision that the cake shop discriminated against a customer for refusing to bake a cake for a gay wedding.

“Do we have permission to control our private businesses?” Von Biedenfeld said.

Even if vaccine passport rules are taken out of the state’s hands, von Biedenfeld says private business associations, like the approximately 300,000-member National Restaurant Association, will likely struggle to come up with a “cohesive strategy” to replace it because their membership is so diverse.

Correction: Prof. Von Biedenfeld is affiliated with the University of Houston-Downtown, not the University of Houston.

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