Key Takeaways
- State laws restricting vaccine requirements range from rules for government agencies, to bans on businesses requiring customers to prove vaccination, to limits on what private employers may require of workers.
- Courts have largely allowed these laws to stand, including a 2022 Eleventh Circuit ruling against a cruise line's challenge to Florida's vaccine-passport ban and decisions keeping Montana's vaccination-status law in force.
- States have kept legislating after the pandemic emergency ended, with Florida, Texas, and Idaho adding broader limits on employer and business vaccine requirements.
Can a state stop a private business from asking whether its customers or employees are vaccinated? Beginning in 2021, a wave of states said yes, reversing the usual direction of public health regulation.
In this TalksOnLaw Brief, Joel Cohen talks with Professor Dorit Reiss, Professor of Law and the James Edgar Hervey ’50 Chair of Litigation at UC Law San Francisco (formerly UC Hastings), about state laws restricting COVID-19 vaccine mandates. Reiss sorts these laws into a ladder, from the least to the most restrictive and reviews the legal arguments against them.
A Ladder of Restrictions
Reiss explains that most of the states that acted, whether by executive order or by statute, addressed government only, barring agencies from conditioning services on vaccination or from requiring public employees to be vaccinated. She sees many as largely symbolic, since states willing to pass them were unlikely to impose mandates anyway. The practical exception is state universities: where a university counts as a state agency under state law, it may be barred from requiring vaccines even though courts have upheld school vaccine requirements.
The next rung tells private businesses they cannot require customers to be vaccinated or to show proof of vaccination. Reiss calls this highly unusual, because regulation usually promotes safety rather than preventing businesses from adopting safety measures. The closest parallel she identifies is Florida's law barring businesses from prohibiting firearms in their parking lots, a type of law several other states have also adopted.
The Cruise Line Challenge
Reiss describes the lawsuit Norwegian Cruise Line Holdings brought against Florida's vaccine-passport ban. The company argued that the law violated the dormant Commerce Clause, was preempted by federal CDC requirements, infringed its freedom of speech, and failed rational basis review. Reiss viewed the speech claim as the weakest of the group.
Limits on Private Employers
At the top of the ladder are laws that restrict private employers. Reiss focuses on Montana, whose law bars employers from requiring vaccination and from treating employees differently based on vaccination status. She notes the tension with an employer's duty to provide a safe workplace, using a nursing home example, and explains that the law also rules out incentives for vaccinated staff or masking rules only for the unvaccinated. Its broad wording may even reach families hiring a nanny. Montana's statute does include limited provisions allowing certain health care facilities to adopt accommodation measures for unvaccinated staff.
What to Know Now
These laws have outlasted the federal public health emergency, which ended in May 2023. Florida expanded its restrictions in 2023 to cover business requirements for proof of COVID-19 and mRNA vaccination, with some health care exceptions; Texas barred private employers from imposing COVID-19 vaccine mandates in 2023, without a health care exemption; and Idaho's 2025 Medical Freedom Act broadly restricts businesses and governments from requiring medical interventions, including vaccines, for employment or service.
In court, the challenges Reiss described have mostly favored the states. The cruise line won a preliminary injunction in 2021, but the Eleventh Circuit vacated it in 2022, likening Florida's law to antidiscrimination and medical-privacy protections. In Montana, a federal district court blocked the law for health care settings in 2022, but the Ninth Circuit reversed in 2024, and the Montana Supreme Court has declined to block the law while state constitutional challenges proceed.
Supporters see these laws as protecting medical choice and privacy; critics, including many public health scholars, argue they limit the ability of businesses and employers to protect vulnerable people. With rules varying sharply by state, anyone setting workplace or customer policy should check current state law.
