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Mass Mask Chaos

May 28, 2021

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SARATOGA SPRINGS — Handmade signs. Homemade signs. Computer-generated official-looking signs. The storefront windows all along Broadway reflect a diversity of goods on display, as well as a varying set of instructions for all whom may enter: mask required, mask optional, proof of vaccination necessary, customers on the honor system.

“Private businesses can choose to exclude individuals who don’t provide proof of vaccination,” says Melanie M. Franco, Esq., an attorney in Tully Rinckey Albany office, where she focuses her practice in federal employment law.

Earlier this month, the Centers for Disease Control and Prevention issued guidance that explained vaccinated people no longer needed to wear masks or to physically distance from others. With roughly half the national population having received at least one dose of vaccine, many business owners are facing a quandary.

“The CDC released certain guidelines based on how vaccinated versus non-vaccinated people can do certain things, but New York State is allowing the cities and counties to determine how to implement those guidelines,” Franco said. “On the flip side of that individuals can choose whether or not they provide that proof, so it’s an interesting area because they may not be allowed to go into businesses if they’re not vaccinated or if they choose not to prove they are vaccinated.”

The rules vary from state to state with each state having the authority to decide how they implement them and what laws they make. “That’s been an ongoing question. It will vary by state: how they handle big venues, how they handle vaccines. What’s happening here may not necessarily be the same as what’s happening in New Jersey or Connecticut,” Franco said.

Regarding venues that host sports, concerts and similarly tradional large gatherings, N.Y. Gov. Andrew Cuomo said during his presser on May 26 that “all venues have the option of going to 100% capacity for fully vaccinated people. Some venues can be 50% vaccinated, 50% unvaccinated – but that limits the capacity of the venues.”

Across the country, the rules are different. This week, two long-awaited Chicago events — the Windy City Smokeout street festival and Lollapalooza — announced they will require attendees to show proof of being vaccinated or a negative COVID-19 test. And earlier this month, that city began allowing late-night bars to operate past the 1 a.m. curfew if they only let in vaccinated patrons, the Chicago Tribune reported.

Internationally, regarding travel, some countries have already started to create platforms for smartphone digital health passports, or so-called “vaccine passports.” The platforms allow access to an individual’s health data, such as COVID-19 test results or vaccination status.

Locally, 9 Maple Avenue jazz bar was among the first to allow full attendance by patrons with proof of vaccination required

Due to the pandemic, 9 Maple Ave was forced to shut its doors in March 2020. Last weekend, the venue was excited to announce it would re-open its doors for live music and patrons.

“Our staff were doing cartwheels. Fourteen months is a long time to be closed,” said 9 Maple Ave owner Mike Sirianni. The venue announced it would be reopening and following CDC and State guidance of no masks or social distancing for vaccinated patrons. Proof of vaccination – via either a vaccination card or Excelsior Pass would be accepted as a requirement for entrance and seating. The small size venue has a 50-person capacity, severely limiting space options that would be necessary in allowing entry to non-vaccinated persons.

“Please note that this is the only way that we can responsibly open due to our size. We are small. We are not following the guidelines to somehow infringe upon your personal rights. We can open only if we follow the rules that were put in place. It’s that simple,” the venue explained on its social media pages. The post received hundreds of comments in response. Not all were positive.

“Some people huffed and puffed a little bit, and as far as the Internet goes, I stopped looking at it,” Sirianni said following last weekend’s reopening. At the entryway, a doorman checked for proof of vaccination.

“We’re hoping the whole thing (eventually) gets lifted. We don’t want to do this, but the only way we can do it is without social distancing. We’re so small it’s the only way we can open,” he said. “We wound up going 100% vaccinated and I have no regrets. We had music and lots of very happy customers. They appreciated the vaccination check. It went quite smoothly, and it was really good to get back to doing what we do. I do have to say that on Saturday night my front window got busted. I don’t know if it was related or not.” The incident occurred late at night and no one was injured.

Perhaps anticipating an influx of fake vaccination cards, the FBI released a Public Service Announcement warning that any person using, buying, selling or transferring a fraudulent card to another can be fined and/or imprisoned for up to five years, since the creation of such a card would carry a phony seal of a government agency. “If you did not receive the vaccine, do not buy fake vaccine cards, do not make your own vaccine cards, and do not fill-in blank vaccination record cards with false information,” said the PSA.

According to the CDC, about half the U.S. population – more than 163 million people – have received at least one vaccine dose, and overall 40% are fully vaccinated – the latter meaning that more than two weeks have passed since they completed the vaccine series. In New York State, those vaccination percentages are slightly higher than the national average (52% at least one dose, 44% completed vaccine series), and Saratoga, with more than 60% of its residents having received at least one dose, is among the highest vaccinated counties in the state.

Of the 280-plus million doses administered nationally, just over 150 million are Pfizer, 120 million Moderna – both are two-shot vaccines, and just over 10 million are the one-dose Johnson & Johnson.

Earlier this month, the CDC followed an FDA decision to recommend to authorize emergency use of this of the Pfizer-BioNTech COVID-19 vaccine in 12-through 15-year-old adolescents. Clinical trials are underway to test the safety and efficacy of COVID-19 vaccines in children under 12.

Where schools are concerned, Franco says, “essentially states can require school-age children to receive the vaccine and schools themselves can, but it comes down to the state itself, so public schools would be under the mandate of what the state is saying.”

If one were not able, for personal physical/health reasons, to receive the vaccine, Franco says, “I think there would need to be more consideration there. I think that would be an issue to come up later on, especially after the FDA makes their final decision on it (expected in November). Because, yes, if you have a disability that would physically prevent you from being able to get the vaccine that could possibly lead to a cause of action for discrimination. But right now, there isn’t anything necessarily anything that would allow legal relief if an employer required it.”

Regarding claims of potential HIPPA (the Health Insurance Portability and Accountability Act) violations receiving attention in some social media circles, Franco says, “I have seen a lot about that, people saying that it would be a violation of HIPPA to ask whether you’re vaccinated – but that is completely false. HIPPA only has effect in a health care setting. It prevents health care professionals from sharing private health information without the patient’s consent. So, it doesn’t apply to whether a business, an employer or even a person on the street just asks you whether or not your vaccinated. It’s also not a violation of HIPPA to require the vaccine.”

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