HIPAA, ADA, and Federal Laws Do Not Ban Businesses From Asking About Vaccination Status or Requiring Masks

With businesses reopening as COVID-19 restrictions are eased and people beginning to resume pre-COVID-19 activities, public safety efforts by businesses have become more critical than ever. The CDC has determined that people who are fully vaccinated may be safe to resume most activities (and to do so without a mask), but that it is not safe for unvaccinated people to do so. Additionally, many businesses are still requiring that everyone wear a mask to protect employees and customers alike. As with initial pushback against mask mandates last year, people who do not want to wear a mask or get vaccinated are trying to come up with legal challenges to allow them to ignore the rules businesses and local governments put in place for public safety.

One new tactic has been to claim that businesses asking for proof of vaccination are violating HIPAA, a federal law dealing with medical privacy. Despite those claims, experts have made it clear that it is not a violation of HIPAA for businesses to ask about vaccinations. HIPAA specifically applies to healthcare providers and health insurance providers - it has no bearing on what information other people or businesses can ask for, nor does it restrict a person's ability to provide information about their own health or medical status.

Another new tactic is claiming that the Fourth Amendment protection from unreasonable searches and seizures covers questions about vaccination status. Again, experts have made clear that this has no bearing on businesses asking about vaccination status. The Fourth Amendment applies to governments, not private entities, and asking about vaccination does not constitute a "search and seizure." The Fifth Amendment is similarly inapplicable (it applies specifically to court cases, not to businesses asking questions).

As with initial mask mandates, incorrect claims about the Americans with Disabilities Act are once again being made. The ADA is not a means to avoid disclosing vaccination status, nor does it allow unvaccinated people to do whatever they want, nor is it a way to avoid wearing a mask. The ADA requires that reasonable accommodations be made for people with disabilities (e.g., providing curbside service instead of allowing a person to enter a store), but accommodations are not required when they would create a "direct threat to the health or safety of others" (which applies to unmasked/unvaccinated people during a pandemic), when the accommodation would fundamentally alter the nature of a business, or when the accommodation would create an undue burden for the business. Additionally, it is important to note that the ADA only applies when a person cannot be vaccinated or cannot wear a mask for reasons related to a disability; it does not provide any protections to people who could get vaccinated or wear a mask but don’t want to.

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New Survey Highlights Risks to Mental Health of LGBTQ Youth

A new survey from the Trevor Project showed significant risks to LGBTQ youth in the U.S. The findings include specific impacts of the COVID-19 pandemic, as well as of racism.

Some notable findings (quoted from the report):

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Trans and LGBTQ+ College Students More Impacted by COVID-19

A new survey of college students in the U.S. found that trans and LGBTQ students were considerably more likely to have been negatively impacted by COVID-10.

Some notable findings (quoted from the report's Executive Summary):

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Family of Transgender Woman Who Died in ICE Custody Suing Government

Roxsana Hernandez, a 33-year-old transgender woman from Honduras, died in 2018, shortly after arriving to the United States. Hernandez was part of a migrant caravan travelling from Central America, and she asked for asylum in the U.S. on May 9, 2018. She entered into ICE custody four days later, before dying at a hospital on May 25th. ICE stated that Hernandez was hospitalized with symptoms of pneumonia, dehydration, and complications associated with HIV and that her death was caused by cardiac arrest. The Transgender Law Center, who is representing Hernandez’s family, commissioned an independent autopsy which showed extreme dehydration and deep hemorrhaging of the soft tissues and muscles over her ribs which indicated abuse. Hernandez was incredibly sick leading up to her hospitalization and did not receive proper medical care until it was too late. Hernandez’s family filed a lawsuit against five parties that were responsible for her care - CoreCivic, LaSalle Corrections Transport, Global Precision Systems, Management & Training Corporation, and TransCor America. The federal government was added to the lawsuit on Wednesday. An attorney representing the family stated that every agency that Hernandez interacted with failed to protect her and caused her harm. They had a responsibility to provide care, especially when she was visibly ill, but instead discriminated against her based on her gender identity, HIV status, and national origin - all of which are against U.S. law. Hernandez left Honduras in fear of violence against her because she was transgender and ultimately died in the United States because of a lack of empathy and discrimintation for her being transgender, being HIV-positive, and being a refugee. 

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Michigan Moves Up Reopening Timetable Despite Majority of Population Not Being Fully Vaccinated

On Thursday, Governor Whitmer announced significant changes to the MI Vacc to Normal plan and to reopening plans for the state. It is now expected that starting June 1st, all outdoor capacity limits will be lifted, indoor establishments will move to a 50% capacity limit, and restaurant curfews will be ended, but mask rules will remain in place for unvaccinated people in all settings. On July 1st, it is expected that the remaining gathering and mask rules will be lifted. The changes come as vaccination rates are in decline, and it appears unlikely that the state will reach its initial goal of a 70% vaccination rate, particularly without the plan incentivizing vaccinations. At present, only 51.9% of Michigan residents age 12 and up (44.7% of all residents) have had at least one dose of a COVID-19 vaccine, and only 44.5% of those 12 and up (38.3% of all residents) have received both doses of a two-dose vaccine or one dose of a one-dose vaccine.

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Mask Clarification and Guidance

Basic Mask Guidance:

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Fauci States COVID-19 Vaccines Likely Effective Against B.1.617 Variant

In a recent press conference, Dr. Anthony Fauci stated that the two-dose COVID-19 vaccines, Pfizer and Moderna, were likely to be effective against the B.1.617 variant of the virus that causes COVID-19 based on early, real-world data. This data also showed that vaccines were highly effective against the B.1.1.7 and the B.1.315 variants of the virus which were first identified in the U.K. and South Africa, respectively. The B.1.617 variant, which was first found in India, was recently classified as a variant of concern by the WHO and in parts of Europe. The variant is still a variant of interest here in the U.S. Fauci also stated that this is another potentially strong reason for why people should get vaccinated. As variants continue to emerge, it is important that we do what we can to continue to protect each other and ourselves by not only getting vaccinated, but continuing to wear masks as folks continue to get vaccinated, especially if we are around others who may not be fully vaccinated.

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Newly Obtained Video Shows Louisiana State Troopers Beating an Unarmed Black Man in Fatal Arrest

Newly released video shows that six Louisiana state troopers were involved in violently assaulting an unarmed Black man, Ronald Greene, resulting in his death, which they subsequently lied to cover up in 2019. The State Police have consistently refused to release the bodycam videos of the incident and have claimed that the use of force was justified. The Associated Press obtained the video two years after the incident occurred. The footage shows troopers punching, choking, and using a stun gun on the man after he had surrendered and dragging him face-first along the ground after he was handcuffed and shackled. Troopers can be heard calling him a "bitch," saying "I hope this guy ain't got f------ AIDS," and in a separate recording regarding the incident, one trooper says "he beat the ever-living f--- out of" Greene. The troopers involved lied to the man's family, claiming that he died on impact after crashing into a tree, and that same lie was found in the Coroner's records. One of the troopers involved was arrested earlier this year for his role in another incident in which he beat another handcuffed Black man (Antonio Harris, in 2020) and lied about it.

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Michigan Lawmakers Seek Budget Increase for Police 

Last week, Republicans in the Michigan House of Representatives proposed an $80 million increase in funding for law enforcement in a supplemental budget bill. This bill is the third of three supplemental funding bills that use up a majority of the federal COVID relief funds that were allocated by Congress in December and March. The supplemental bill was approved by the House in a 65-42 vote and will now head to the Republican-led Senate. Of the $80 million, $30 million will go to state general fund for training academy recruit stipends and scholarships, $10 million for community policing programs, $10 million for mental health services for police and prison guards, $10 million for local job shadow programs, $10 million for body cameras, $5 million for signing bonuses, $2.1 million for recruitment marketing, and $2.7 million for secondary road patrols. Republicans are stating that anti-police sentiment, including calls to defund the police, has slowed recruitment of police officers. House Speaker Jason Wentworth stated that the profession has been beaten down and this budget increase is a big and initial investment to support the field. House Democrats proposed amendments such as body cameras for every state trooper, community engagement efforts, and crisis intervention teams, but were shot down. Republicans state that this immediate funding is going to support police officers and then, they will work on law enforcement legislation. Without meaningful legislation changes and shifting of resources towards community mental health, housing, and other social supports, discrimination and harm against BIPOC individuals by law enforcement will continue. Putting $80 million in the hands of our communities to meet their needs would be a better solution. 

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This Week's QM Round-Up Contributors (in alphabetical order):