Arizona AG says private businesses can require COVID-19 vaccines

PHOENIX — Private Arizona businesses can require their employees to be vaccinated against COVID-19 but must allow reasonable religious and medical exemptions under state and federal law, state Attorney General Mark Brnovich wrote in a legal opinion.

And they can impose vaccine requirements on patrons as well, as long as they provide reasonable accommodation for customers who can’t take a vaccine because of a disability or don’t discriminate against someone who won’t take a vaccine for religious reasons, the Republican wrote in Friday’s opinion.

Public schools and universities and local and state government agencies are different because of laws enacted this year by the Republican-controlled state Legislature and signed by GOP Gov. Doug Ducey.

They are not allowed to require employees or students to get a vaccine, once the new laws take effect Sept. 29. But private schools can, if they allow exemptions for religious or health reasons.

Ducey last week issued an executive order barring state and local governments from requiring vaccines, based on an existing law that says health agencies can’t force people to be treated if they comply with sanitary or quarantine rules. A violation carries criminal sanctions.

Brnovich, who is running in the 2022 Republican primary for the U.S. Senate seat now held by Democrat Mark Kelly, also weighed in on whether airlines can require patrons to be vaccinated. The answer is no, sort of.

Airlines are covered by federal laws and regulations, Brnovich wrote, and currently are not allowed to refuse service unless a person actually is sick, a risk to other customers and can’t get a medical certificate that outlines preventative measures.

“It will be difficult for a carrier to establish that proof of vaccination is now a required preventative measure for COVID-19 when airline service has continued throughout the COVID-19 pandemic with masking and ventilation as the primary preventative measures,” the opinion said.

In a statement and summary accompanying the legal opinion, Brnovich argued that the coronavirus is a threat to constitutional rights.

“We must hold the Constitution close in times of crisis because that’s when our rights are most at risk,” Brnovich’s statement said. “In all medical and health decisions, Americans have the right to try and the right not to try; we cannot have one without the other.”

The attorney general also gave himself some political cover for the parts of the opinion where he says private businesses in many cases can require vaccines, a position vocally opposed by some in his own party.

“Americans should be allowed to choose which risks they are comfortable taking and which they are not,” Brnovich wrote. “The law does not always reflect good public policy and our role with respect to an Attorney General opinion is to say what the law is, not what it should be.”

The opinion comes as health officials in Arizona and much of the nation are dealing with a resurgence of COVID-19 brought on by the new delta variant. Hospitals and many medical professionals and some politicians are practically begging people to get vaccinated, since the vaccine in most cases prevents severe infections.

State health officials on Sunday reported more than 3,000 new coronavirus cases and an additional three deaths as a surge driven by the delta variant continued for the sixth week.

The Arizona Department of Health Services reported 3,307 new infections, bringing the total since the pandemic began to 986,082. The total number of people who have died in the state from COVID-19 is now 18,600.

On Saturday, the health department reported 3,195 news cases and 36 additional deaths.

The number of new infections each day had dropped below 1,000 for several months in the spring and early summer until the new variant began hitting Arizona in July. The seven-day rolling average of daily new cases in the state has risen over the past two weeks from 2,311 new cases per day on Aug. 6 to 2,452 on Aug. 20.

That has led to a slightly greater number of people deciding to get a COVID-19 vaccine in recent weeks.

More than half of Arizona’s population has received at least one dose of the coronavirus vaccine. Hospitalizations due to the virus have climbed to the highest number since mid-February.

More than 1,800 people are hospitalized with the virus, 462 of them in intensive care.