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Why HIPAA and the Fourth and Fifth Amendments don't protect you from vaccine questions, mask requirements

Posted at 12:21 PM, May 14, 2021

LAS VEGAS (KTNV) — Many people believe that it is against the law for a business like a restaurant or retail store to ask customers if they have been vaccinated against the coronavirus.

The people who believe that it is against the law often cite the Health Insurance Portability and Accountability Act, known as HIPAA, the Fourth or Fifth Amendments of the U.S. Constitution and even the Americans with Disabilities Act.

However, none of these laws can be used to ignore mask requirements and none of them prevent a business or other entity from asking people whether or not they have been vaccinated.

HIPAA is one of the most misunderstood health laws in the country. Most people think it provides comprehensive privacy protections for health information in all circumstances and that is not true.

HIPAA is a federal law that required the creation of national standards to protect sensitive patient health information from being disclosed without the patient's consent or knowledge.

The ONLY individuals and organizations subject to the privacy rule are healthcare providers, health plans, healthcare clearinghouses and business associates of the other three.

That means it is not applicable to questions from a business owner to a patron or from one person to another.

Some people also try to claim that they are protected from questions about their health and vaccinations by the Fourth and Fifth Amendments.

The Fourth Amendment reads: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

By the government. That means business owners or other concerned individuals are not violating the Fourth Amendment when they ask someone to provide proof they have been vaccinated because they are not the government.

Another popular defense is the Fifth Amendment. Many people believe that the Fifth Amendment protects them from having to admit to something.

However, it only applies to criminal cases. The Fifth Amendment guarantees “due process of law.” Once again, it only applies to actions by the government. Although an individual can refuse to answer any question they do not want to answer, they can not “plead the Fifth."

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In short, there are no legal prohibitions on what people can say to one another about their health and there are no laws that prevent businesses from asking someone about their health or requiring them to wear a mask.

Additionally, proof of vaccinations has long been a requirement for people to attend school, work in certain fields like health care, or travel to exotic places.

Providing legal proof began back in the early 1900s because of smallpox. The Supreme Court ruled in 1905 that health departments had the right to require the smallpox vaccination and to require proof of vaccination.

However, even before then, people wishing to immigrate to America have often been turned away if they did not have a scar on their upper arm from the smallpox vaccination or pockmarks that proved they had survived the disease.