More businesses could follow Norwegian Cruise Line and require vaccines

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A ruling in favor of Norwegian Cruises Line could set a precedent that favors “vaccine passports.”

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More businesses could follow Norwegian Cruise Line and require vaccines

By RON HURTIBISE

The Norwegian Gem cruise ship is shown docked, Monday, Aug. 9, 2021, at PortMiami. (Wilfredo Lee/AP)

 

Norwegian Cruise Line could be clearing the way for businesses across the U.S. to require customers to show proof of vaccination before being served.

Attorneys looking into a federal district judge’s ruling on Sunday allowing Norwegian to require vaccination of all future passengers said the ruling, if upheld, could set a precedent that could strike down laws in several states barring businesses from requiring “vaccine passports.”

If that’s the end result of Norwegian’s challenge of Florida’s vaccine passport ban, it would be a huge political setback for Gov. Ron DeSantis, rumored to be considering a presidential run in 2024. and other Republican governors who have enacted passport bans to appeal to mostly conservative, vaccine-resistant constituents.

Twenty states, all with Republican governors, prohibit proof-of-vaccination requirements. Eleven of the states’ bans were established through governors’ executive orders while nine others, including Florida, enacted their bans through legislation. The Florida Legislature modeled the state’s ban after a DeSantis executive order in March.

“I think the Norwegian lawsuit gave a template to businesses that feel overburdened by other states’ legislation,” said Michael Winkleman, a Miami-based attorney specializing in maritime law. While businesses in other states would have to file their own lawsuits challenging the particulars of their own state’s laws, Wiinkleman sees “a distinct possibility that the case will lead to all businesses being allowed to require vaccine passports.”

But first, the ruling by U.S. District Judge Kathleen M. Williams allowing Norwegian to require vaccines of passengers on voyages starting Aug. 15 will have to survive an appeal by DeSantis and possible trip to the U.S. Supreme Court.The case was filed by Norwegian Cruise Line Holdings, which also owns Oceania Cruises and Regent Seven Seas Cruises

Williams, in a 59-page written order outlining her reasoning, laid out several points of law she said supported Norwegian’s challenge.

DeSantis’ office focused on one of those reasons — violation of free speech rights — in announcing plans to appeal the injunction at the 11th Circuit appellate court in Atlanta, presumably before Norwegian’s first voyage on Aug. 15 from PortMiami.

Williams’ order found that the vaccine passport ban violates First Amendment rights of free speech by barring businesses from requiring vaccine documentation but not from requiring customers to present other medical documents or respond to oral questions of whether they are vaccinated.

The law is also unconstitutional under a “content-based” restriction because it singles out specific subject matter, in this case a card verifying that someone got a vacccne, but does not prohibit businesses from requiring customers to show documentation of negative COVID-19 tests or other types of medical documentation, the order states.

Establishing the First Amendment violations was necessary based on arguments Norwegian raised in its suit, Winkleman said. Yet, he said, it also gave DeSantis an opening to challenge the entire ruling.

A statement on Monday by DeSantis’ press secretary Christina Pushaw argued the ban has nothing to do with freedom of speech. “We disagree with the judge’s legal reasoning and will be appealing to the Eleventh Circuit Court of Appeals,” the statement said. “A prohibition on vaccine passports does not even implicate, let alone violate, anyone’s speech rights, and it furthers the substantial, local interest of preventing discrimination among customers based on private health information.”

Attorneys who studied the order said the free speech points set up the legal logic of the points Williams made later.

One of her points takes issue with the state’s contention that the law is intended to prevent discrimination against unvaccinated people and to protect medical privacy.

“If combatting discrimination were the goal, merely banning the exchange of COVID-19 vaccination documentation is an ineffective way to accomplish this objective,” the order states, “because [the law] does not directly prohibit the treating of unvaccinated persons or those who decline to verify their vaccination status by businesses and employers differently.”

The judge made a well-reasoned argument, said Bob Jarvis, law professor at Nova Southeastern University.

“The only justification Florida has advanced is that the law is meant to protect the civil rights of the unvaccinated,” Jarvis said. “She’s saying, ‘That’s not good enough.’ The unvaccinated have no civil rights based on their vaccination status. It’s not like discriminating against African Americans or members of the Lesbian, Gay, Bisexual, Transgender or Queer communities. We incarcerated Typhoid Mary to prevent her from infecting others. All businesses want to know — ‘Are you a threat to my employees or my other customers?’”

From that perspective, the passport ban violates businesses’ right to freely associate with whom they want, and to not associate with others, as long as their reasons are not based on unchangeable characteristics such as race, religion, ethnicity, and sexual orientation.

Denying service to unvaccinated people, Jarvis said, is no different than requiring customers to wear shoes or barring them from bringing animals inside a restaurant. “It’s to protect the health of others,” Jarvis said.

Harsh Arora, business attorney and partner at Fort Lauderdale-based Kelley Kronenberg, said Williams’ order identifies holes in the state law that prevents it from doing what legislators intended.

For example, it does not prohibit orally asking for vaccination status and using oral replies to determine whether to serve a customer, Arora said. While the law purportedly is meant to protect the privacy of customers’ medical information, it does not bar businesses from retaining, publishing or disclosing their oral responses, he noted, adding, “So what’s the point?”

Williams’ order also lays out the current status of the risk Norwegian faces if not allowed to require vaccinations.

She said the state presented no evidence to refute Norwegian’s claim that it would suffer “significant reputational damage” if forced to comply with the vaccine passport ban.

“The company would have no other reliable method for ensuring that all passengers have been vaccinated,” she wrote. Norwegian would have no other choice but to either cancel its upcoming itinerary to sail from Florida ports or suspend its vaccination policy. “Either option would injure [Norwegian’s] reputation, trust and goodwill among customers who were promised a vaccination requirement ... as well as the 20,000 people who have already booked tickets for voyages on ships departing from or arriving to Florida between now and January 2022,” the ruling states.

Further, allowing unvaccinated guests on board increases risks of COVID-19 transmission. Quoting a Norwegian brand consultant, Williams agreed that Norwegian’s “brand trust would be severely harmed and could be destroyed if there were an outbreak of COVID-19 on any of its cruise ships.”The cruise industry is a unique sector whose entire business model depends on cruise lines’ abilities to travel across borders of various federal, state, local and international jurisdictions “in a matter of days and even hours,” the judge said. Meanwhile, research shows that cruise lines are hotbeds for COVID-19 transmission.

Yet despite carving out exceptions for health care providers and employers, the state failed to show why it did not carve out a similar exception for cruise lines that would not have placed an unconstitutional burden on interstate activities such as cruises and private bus excursions, the order states.

Spokespersons for the major cruise lines declined to say whether the injunction could affect their future vaccination policies. Currently, all members of the Cruise Lines International Association are voluntarily following guidelines established by the Centers for Disease Control and Prevention, which enable them to resume sailing from U.S. ports if they can establish vaccination rates of 95% for passengers and 98% of employees.

The CDC’s ability to shut down cruise lines that don’t follow its guidelines was suspended last month following a legal challenge by DeSantis over the agency’s authority. An order by the 11th Circuit appellate court making those guidelines voluntary in Florida was touted by DeSantis as a major victory. But some legal experts said the victory meant little because cruise lines had already voluntarily committed to complying with the CDC.

Norwegian’s challenge of DeSantis’ vaccine passport ban, they said, is the more important fight with higher stakes.

A victory by Norwegian, Arora said, “would provide a basis for challenges by other industries in other states, primarily the hospitality industry. Florida has been at the forefront of many of these COVID-19 issues. This could be one.”

 

 

Ron Hurtibise

South Florida Sun Sentinel