PHONIX, AZ – Late Friday afternoon, Arizona Attorney General Mark Brnovich released his official opinion, finding that private businesses can require patrons be vaccinated. Brnovich’s opinion came at the request of Sen. Kelly Townsend, a staunch opponent of what has become known as vaccine passports.
Townsend asked, “Whether a business can compel an individual to prove that they have received a vaccination before that person can patronize the business?”
In his opinion, Brnovich responded, “Under federal and state law, private businesses that mandate vaccination for patrons must provide reasonable accommodations to patrons who cannot obtain the COVID-19 vaccine due to disability, and they must not discriminate against customers who cannot obtain such a vaccine due to a sincerely held religious belief.”
Brnovich also found: “Private businesses can require COVID-19 vaccines for employees but must allow for reasonable accommodations. Per federal law, private entities that carry out an EUA activity like administering COVID-19 vaccines must inform those to whom they are administering the vaccines (which may include employees) that they have an option to decline.”
“I have mixed feelings about the Attorney General’s response,” Townsend told the Arizona Daily Independent. “On one hand, I am grateful that the public employees have this opinion to stand on in court as they fight the gross overreach by local rogue governments. Yet I am dismayed and disappointed that the opinion does not give specifics regarding patrons’ right to privacy about their medical information. I have asked for a follow up opinion to further clarify what access to other medical conditions a business owner could demand.”
“He clearly missed the point, which was to ascertain exactly how members of the public, and even small business owners protect their rights without violating the rights of others,” Townsend continued. “While some attorney can mine some important nuggets from this opinion, the immediate concerns are not addressed. He had an opportunity to provide guidance and educate elected officials and their constituents. Instead, he muddied the waters even more. I am very concerned that this opinion will result in conflict and ultimately unnecessary litigation.”
One of Brnovich’s rivals in the Republican U.S. Senate primary race, Blake Masters noted that not only was the decision “vague,” but appeared to have been released late on Friday in an effort for it to receive little attention by the press:
When something is released on a Friday afternoon, it’s an attempt to bury it. Here is Attorney General Brnovich saying that Arizona employers have the right to require their employees to get the (still emergency-use-only!) vaccine, or else they can be fired.
Also this is evasive and non responsive… if your view is that private businesses can demand medical information from customers, just be bold and come out and say that.
As Townsend notes, in the vaguely written 40-page legal opinion, Brnovich does not provide any guidance for how employers can deal with employees, and businesses such as grocery stores, can ascertain a person’s vaccine status in order to provide a reasonable accommodation.
“In some areas the AG’s office could have gone further,” one Arizona attorney told the Arizona Daily Independent. “For instance, in intimating that employers are allowed to inquire as to an employee’s reason for seeking a religious exemption after September 29, they probably fall short of the full sweep of the Legislature’s intent. In some areas the authors could have been clearer. But overall, the opinion is a bold shot across the bow of vaccine mandates, the likes of which few states have been graced with.”