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‘No shoes, no shirt, no vax,’ no service?

May 6, 2021

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Can businesses and restaurants in New York restrict who they serve to accommodate only people who are fully vaccinated?

The short answer is yes.

“We’re dealing with constitutional rights and constitutional limitations,” explained Leslie Silva, a partner at Tully Rinckey law firm. “It’s the rights of the individuals, it’s the limitations of government and what a private business can do. And a private business is well within their right to say that you have to have a vaccine before we’re going to give you goods or services.”

But how would this work?

“No shoes, no shirt, no vax? Is that a new thing,” asked Melissa Fleischut, president of the New York State Restaurant Association.

Fleischut says she is not sure there is much of an appetite to restrict who is allowed inside a restaurant.

“It puts us in a tough spot with a lot of the guests as they walk in,” Fleischut continued. “It’s not something you might be planning on doing. If you decide to stop by at a bar or a restaurant on your way home, you may not have thought about it before. Do you have your vaccination card with you? Is it something you planned?”

Governor Andrew Cuomo announced on Wednesday that large-scale outdoor facilities, including ballparks, racetracks and concert venues, can set up sections for fully vaccinated people at 100% capacity, waiving the six-foot social distancing rule.

Restaurants and bars are set to have capacity limits lifted on May 19, but must maintain that six-foot rule. There is a little wiggle room if restaurants maintain partitions between seats.

However, for restaurants already tight on space, lifting the social distancing policy is the next big hurdle.

Fleischut says there would definitely need to be a big incentive for restaurants to restrict service to only vaccinated customers.

“What does it mean in terms of the guidelines, the rules and the restrictions that we face as a restaurant,” Fleischut said. “Do they all just go away? What would be our incentive and what would be the incentive of our guests who abide by that sort of a policy? I think that’s what we have to wait and see.”

The governor’s office declined to say at this time if businesses and restaurants serving only fully vaccinated New Yorkers would mean this six-foot rule could be lifted for these establishments.

Restricting service to only vaccinated customers will most likely have a deadline, though.

As the COVID infection rate starts to lower and more people start to get vaccinated, Silva says she could see it becoming harder for businesses to maintain that right of regulating who is allowed inside.

“When the threat lowers and the risk lowers, their ability to deny service is also going to thin out,” Silva explained. “So it’s going to be interesting to see if we do reach that level of herd immunity, which is still questionable right now, if we do reach these levels, what rights will businesses have.”

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