In the legal battle over Florida’s ban on COVID-19 “vaccine passports,” the state’s attorneys have urged a federal judge to dismiss Norwegian Cruise Line’s lawsuit to overturn the state law.
Attorneys for the Governor’s Office and state Surgeon General Scott A. Rivkees, one of the defendants, said Florida was within its rights to block businesses from requiring consumers to have vaccine certifications as a condition of providing a service.
“Exercising its sovereign authority through its traditional policy power of safeguarding public health, safety and the economic well-being of its citizens, the Florida governor and legislature have determined that businesses in the state should be prohibited from denying service to customers who decline to provide documentation certifying COVID-19 vaccination ...” the motion filed this week in federal court in the Southern District of Florida states.
In its lawsuit declaring the Florida ban unlawful, Norwegian said the statute is preempted by the federal Centers for Disease Control and Prevention’s conditional sailing order and flies in the face of the First Amendment in disrupting communications between businesses and their customers.
Florida’s attorneys, however, discounted those positions.
“Under the statute, Norwegian may ask all its customers to provide proof of vaccination, and its customers are equally free to provide it,” the state’s motion says. “The statute simply forbids Norwegian from refusing to serve anyone who does not wish to share his or her medical records with it.”
Meanwhile, the CDC has been enjoined by a federal court from enforcing its conditional sailing order, the state points out.
A number of states have put in place bans on vaccine and mask mandates that apply to employees, not simply customers, according to attorney Brett Coburn, a partner with Alston & Bird LLP in Atlanta.
“The Florida vaccine passport ban does not apply to employers in their capacity as employers – it only purports to regulate businesses in Florida and what they cannot require of their customers or patrons,” Coburn told the Florida Record in an email.
The constitutionality of such laws is now the focus of debate among legal scholars. A University of California, Berkeley, law professor, Dorit Rubinstein Reiss, has indicated that U.S. Supreme Court rulings have upheld employers’ right to impose compulsory vaccinations in different circumstances, although such rights are subject to limitations such as customers’ religious beliefs about vaccines and limitations outlined in the Americans With Disabilities Act.
The COVID-19 vaccines’ emergency-use approval also adds some uncertainty to the issue because emergency approval effectively makes taking the vaccines a personal choice, according to Reiss.