Starting Thursday, Florida businesses can be fined $5,000 if they ask you to prove you’re vaccinated. But the statute may not be constitutional, and the rules could be different if businesses ask for a negative COVID-19 test instead.
The difference is that the statute specifically states you can’t require documentation of vaccination status from customers, but it doesn’t specifically say that you can’t require a negative COVID-19 test when they come in. Everything beside the physical paper document that says someone has been vaccinated is fair game.
Some legal experts we spoke with say there are numerous other ways for business owners to get around this. The statute also doesn’t rule out someone verbally asking you if you’re vaccinated, or charging you a different price if you’re not vaccinated. It simply comes down to the fact that, from a First Amendment standpoint, they’re trying to get to the same end but using different means to get there, means that aren’t specifically outlawed.
“They’re restricting you from doing one thing, as opposed to another thing,” said Scott Atwood, chair of employment law group Henderson Franklin. “And if then the government gets in the way and says that you can’t require or not require them to do one thing and try to get to the same endgame, then you can get in trouble. So it’s the same as saying that you can’t have one type of flag, and then put another type of a flagpole in your front lawn.”
Critics of the statute say it violates a business owner’s First Amendment right by preventing them from asking a question, which would mean government restriction on free speech. Experts say they wouldn’t be surprised if the statute is taken to court again, but they’re advising small businesses to not risk it, saying for now it may be safer to abide by the rule. If they are really worried about customers bringing in the virus, they can take other precautions instead, like asking them to wear masks. For now, only time will tell just how legal judges interpret this to be.
“The Florida statute, it started out as an executive order from the governor, and now it’s a statute,” Atwood said. “You know, it’s already been held unconstitutional by at least by one federal court judge. So we’ll see if that gets expanded to be a statewide ban at some point in time.”