Ducey Bans Government Entities From Asking About Vaccine Status But Businesses, Schools, Health Providers Can

By Terri Jo Neff

An effort by the Arizona Legislature to craft permanent legislation to prevent a person from being denied access to businesses, government facilities, and even their child’s school unless they showed proof of being vaccination for COVID-19 was pushed aside Monday when Gov. Doug Ducey issued an executive order about the issue.

Under Executive Order 21-09, most private businesses in Arizona will be free to refuse service to “a customer” who does not provide proof of COVID-19 vaccination. Only companies which receive state funding to provide services to the public are banned from inquiring about someone’s status, although Ducey’s order does not protect those citizens who cannot receive a vaccine for a medical reason

“While we strongly recommend all Arizonans get the COVID-19 vaccine, it’s not mandated in our state — and it never will be,” Ducey said in announcing his latest COVID related executive order. “Vaccination is up to each individual, not the government.”

Daycares, schools, colleges, and universities would still be able to ask about a student’s vaccination record as already allowed by law, but parents could not be asked about their own vaccination status if the educational program receives any state funding.

In addition, hospitals and other healthcare facilities can inquire about the vaccination status of patients, prospective patients, vendors, visitors, and staff, even if the organization receives state funds.

There was initially some confusion Monday morning about what EO 2021-09 encompassed, as Ducey’s official Twitter account read “I’ve issued an Executive Order banning ‘vaccine passports’ and preventing state and local governments from requiring Arizonans to provide their #COVID19 vaccination status to receive service or enter an area.”

Many took the first sentence to mean businesses could not impose a vaccine requirement on customers. However, that misinterpretation was quickly corrected by the rest of the governor’s comments.

Ducey noted in the executive order that no person should be compelled to disclose their private health information -including their vaccination record- to a government entity as a condition of receiving services, obtaining a license or permit, or entrance to a public facility unless state law already requires proof of vaccination.

He added that federal and state laws allow individuals to refuse to be vaccinated, and that “it is not and will not be mandated in the State of Arizona.”

EO 2021-09 also prohibits any other state subdivision -including cities towns, counties, and state agencies- from adopting a policy or ordinance that contradicts the governor’s order. This ensures cities, towns, and counties cannot demand proof of vaccinations for people to use public parks and other public recreational and entertainment amenities.

Rep. Bret Roberts (R-LD11) first introduced legislation to ban such “vaccine passports” in Arizona. His effort was taken up by Sen. Kelly Townsend on March 28 in the form of HB2190, which would have protected Arizonans from having to divulge their vaccination record to shop, dine, or do most everyday activities.

HB2190 hit a snag in early April over concerns that it did not allow healthcare providers nor business owners to inquire about vaccination status of their employees. Negotiations have been underway all month on possible amendments to Townsend’s bill.

For his part, Roberts announced his support for EO 2021-09, noting Ducey’s “reasons for doing so are sound.” But he went on to note that many of those sounds reasons “also apply to the private sector.”

“No one should be required to give up their medical history to participate in commerce,” Roberts tweeted Monday morning. “When all businesses require it the individuals choice is lost. Allowing private business to do this amounts to segregation.”

Roberts also expressed concern that executive orders are intended to be temporary. After the governor’s announcement, Rep. Leo Biasiucci (R-LD4) said SB2190 should be voted on in the coming days as it “solves the issue with businesses requiring vaccine mandates.”

Also on Monday, Ducey rescinded a section of his EO 2020-51 which had directed K-12 schools to require masks.

“We will continue to work with public health professionals and Arizona’s schools as more students return to the classroom and our state moves forward,” the governor said.