By Corinne Murdock
Scottsdale’s FnB Restaurant will require patrons to show proof of their vaccination – one of the first restaurants to do so in the valley. However, being vaccinated won’t exempt patrons from masking. FnB will still require that, too.
FnB Restaurant owners Charlene Badman and Pavle Milic issued the vaccination announcement last week on their Instagram page. Their required proof of vaccination upon entry will go into effect on Wednesday.
“With the latest trends regarding the highly transmissible Delta variant, we have decided for the good of all to add another layer of safety for our staff – who is fully vaccinated and still required to wear masks, in addition to the same safety standards pre-vaccine – and our guests who have been vaccinated,” wrote the owners. “Starting Wednesday, August 4th, you will be required to show proof of your coronavirus vaccination card, or a picture of it on your phone. We know some of you might not agree with our decision, but know it comes from a place of deep desire to take care of you and our team. As per usual, thank you for sticking with us during these uncharted times. We have come a long way with vaccinations, let’s not stop halfway.”
The restaurant appears to have taken initiative from the Biden Administration’s latest announcements last week. Last Monday, the Department of Justice (DOJ) Office of Legal Counsel (OLC) declared in an opinion that both public and private entities could legally mandate emergency use authorization (EUA) vaccines like the COVID-19 vaccine. The next day, the CDC updated its guidance to recommend that even fully vaccinated individuals wear masks in areas with high transmission rates.
FDA law states that individuals may be informed of their option to accept or refuse an EUA medical treatment like the COVID-19 vaccine.
“(e) CONDITIONS OF AUTHORIZATION (1) UNAPPROVED PRODUCT (A) Required conditions: With respect to the emergency use of an unapproved product, the Secretary, to the extent practicable given the applicable circumstances described in subsection (b)(1), shall, for a person who carries out any activity for which the authorization is issued, establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including the following: […] (ii) Appropriate conditions designed to ensure that individuals to whom the product is administered are informed – […] (III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing the administration of the product, and of the alternatives to the product that are available and of their benefits and risks.”
In their interpretation of the FDA statute, the DOJ OLC opinion claimed that the FDA law granting EUA for vaccines or other medical treatments only pertained to informing the recipient.
“[That section] concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs,” wrote the OLC. “By its terms, the provision directs only that potential vaccine recipients be ‘informed’ of certain information, including ‘the option to accept or refuse administration of the product’ […] In the sense used here, the word ‘inform’ simply means to ‘give (someone) facts or information; tell.’ […] Consistent with this understanding, the conditions of authorization that FDA imposed for the COVID-19 vaccines require that potential vaccine recipients receive FDA’s Fact Sheet […] which states that recipients have a ‘choice to receive or not receive’ the vaccine[.] Neither the statutory conditions of authorization nor the Fact Sheet itself purports to restrict public or private entities from insisting upon vaccination in any context.” (emphasis added)
The DOJ OLC did add, in the footnotes, that its opinion didn’t speak to federal, state, or local laws that may restrict vaccine mandates.
Although OLC shared its opinion with the public at the end of last month, it was originally submitted to President Joe Biden’s deputy counsel as early as July 6. The next day, the CDC published its updated guidance on masking.
Governor Doug Ducey has supported voluntary vaccinations. Last week, Ducey issued a statement discussing vaccination’s importance as the Delta variant continues to spread.
Corinne Murdock is a contributing reporter for AZ Free News. In her free time, she works on her books and podcasts. Follow her on Twitter, @CorinneMurdock or email tips to firstname.lastname@example.org.