Protesters opposed vaccine passports in Boston — do they have a legal leg to stand on?

Yesterday, Boston Mayor Michelle Wu announced a set of regulations designed to stem the rising tide of COVID infections in the city, including so-called vaccine passports, to permit attendance at certain venues. Daniel Medwed, GBH News legal analyst and Northeaster University law professor, joined host Henry Santoro on Morning Edition to discuss the legal side of the news. This transcript has been edited for clarity and length.

Henry Santoro: Let's begin by getting a handle on the details here. What changes will take place under these new Wu policies?

Daniel Medwed: There are two key features to the mayor's plan, and both of them will begin to be phased in on January 15th. First, she has proposed these vaccine passports, which Henry you alluded to. Basically, those are requirements that in order to gain entrance into certain indoor venues, dining, fitness and entertainment establishments, you'll have to show proof of vaccination. Notably, for kids between the ages of five and 11, there's a longer onramp period, but eventually they'll have to show proof as well.

Second, Mayor Wu has revised her vaccine mandate policy for city workers, all 18,000 strong of them. No longer will they be able to use regular COVID testing as an alternative to a vaccine. Instead, they'll have to get their first jab by January 15th, their second by February 15th, unless they otherwise qualify for a medical or religious exemption.

Santoro: What happens if someone, either a business, a worker or whomever, doesn't comply with these new rules?

Medwed: Well, that's a good question. And yesterday, frankly, the mayor's administration didn't emphasize the punishment side of things. It was much more about incentivizing or motivating people to get vaccinated, to protect all of us rather than threatening sanctions. But at one point, the mayor did indicate that quote "down the road" she'll have to turn to enforcement, perhaps, and that would include penalties or fines for businesses that fail to abide by this — say, a bar that doesn't check for vaccine status in the city.

Also, the very nature of the vaccine mandate implies that if a worker doesn't comply with these new requirements, there could be adverse employment consequences, including the possibility, of course, of termination.

Santoro: You know, she's only been in office a short time, but she does seem like she's a pretty good motivator.

Medwed: I think so, too.

Santoro: Daniel, there were a number of protesters yesterday outside City Hall Plaza, who had some choice words about this proposal, and one can only surmise that some people are going to take their concerns to court. They're going to file legal challenges. Let's talk about the vaccine passports. First, do you think that legal challenge will hold up in court?

Medwed: I think the vaccine passports will hold up in court, not necessarily the legal challenge. And here's why. Local governments have an interest in regulating public health, and that includes regulating private businesses that are open to the public. In many ways, a vaccine passport is just a logical extension of public health measures that we're all accustomed to. You have to wear shoes to go into a restaurant in Boston. It's a way to protect us all by ensuring safe and sanitary conditions.

So I think these vaccine passports will probably hold up in the long run, provided that they don't infringe upon constitutionally protected interests — that you don't have to show proof of vaccination to vote in the city of Boston or to attend religious services. There is no constitutionally protected interest in seeing the Boston Bruins at the Garde — maybe to see the Northeastern Huskies hockey team, Henry, I don't know, but not the Bruins.

Santoro: So no shirt, no service, no passport, no pizza.

Medwed: Logically, they seem analogous.

Santoro: How about the new vaccine mandates for city workers? Are the legal issues any different there?

Medwed: Well, there may be some wrinkles related to labor law and the nature of the union contracts with the city, but largely the legal issues are the same. The idea is that cities have a right to regulate during public health crises and that vaccine mandates in many ways are just an outgrowth of things we've seen before, like mask requirements inside city buildings.

Also, the Supreme Court has essentially blessed the principle of vaccine mandates in a famous 1905 case we've talked about before called Jacobson, which coincidentally involved a Massachusetts ordinance. The city of Cambridge had a law or a regulation that would apply a $5 fine for people who failed to get the smallpox vaccine. And the Supreme Court upheld that ordinance.

Santoro: Daniel Medwed, always a pleasure. Today is National Hamburger Day, so get out there and don't forget your passport.

Medwed: Thank you, Henry.