Restaurant Vaccine Mandates Were Set Up to Fail

In Cook County, Illinois, the vaccine mandate lasted less than two months. Restaurants, gyms, and “indoor entertainment venues” were required to come up with a plan to verify their patrons’ immunization status as of January 3. On that day, as it happens, cases peaked in the county. By February 28, the requirement was gone. “I would have liked to have kept it in place at least a little bit longer,” says Rachel Rubin, the county health department’s incident commander for COVID-19 response. But the blowback from the business community, she told me, would simply have been too intense.

Across the country, cities and counties that have required proof of vaccination from those in bars, restaurants, and other private venues are starting to drop their mandates, all at once, a move that has angered some observers. In New York City, where the mayor lifted requirements on Monday, the city’s public advocate told The New York Times that doing so was “unnecessary and unwise.” It’s true that keeping unvaccinated people out of places where people tend to scream, sing, spit, and sweat might seem like a no-brainer. But it’s unclear how much these policies really help encourage vaccination; the protection they offer to vaccinated people isn’t as strong as it used to be; and businesses and local governments across America do not have the resources to keep them going.

School and workplace mandates for vaccines have succeeded in raising immunization rates. But researchers haven’t clearly shown that people will get vaccinated just so they can enter bars, sports arenas, and other places where you go for fun. “I can imagine the effect being somewhat weak,” Noel Brewer, a public-health professor at the University of North Carolina, told me. I spoke with three public-health officials in large American cities with entertainment-sector vaccine mandates, and each one of them insisted that the requirements had persuaded some residents to get the jab. No one could provide me with any numbers, though.

Jennifer Avegno, the director of the New Orleans Health Department, told me that her city’s requirement, which applies to gyms, restaurants, bars, and event spaces, likely did more to get those venues’ employees vaccinated than their customers. The mandate took effect in August, and Avegno suspects that it’s already exerted the bulk of its influence. “Everybody who’s going to get vaccinated in New Orleans as an adult by and large probably is,” she said, which is part of why the city is planning to lift its requirement later this month.

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“If the main purpose is to help people get vaccinated, then it can make sense to do that for a time and then remove it,” Julia Raifman, a public-health researcher at Boston University, told me. After all, once a person is vaccinated, they stay vaccinated; removing a mandate doesn’t remove their protection in the same way that, say, lifting a mask mandate would. But a city might still want to keep community vaccine mandates around to protect vaccinated people. If you’re having a drink in a vaccinated-only bar, the people around you will be less likely to be infected with the coronavirus (even in the age of Omicron), and less likely to spread it when infected. But in a space where masking is moot, just ensuring that everyone is vaccinated won’t make spending time there risk-free. Immunization requirements at gyms and stores and concert halls “make those settings marginally safer,” Raifman said.

That safety margin gets even slimmer when you account for how leaky these vaccine requirements have been. For one thing, unvaccinated people can easily enter vaccine-only spaces, because vaccine cards are notoriously easy to fake, and because some cities have been accepting a negative test, up to three days old, in place of proof of vaccination. For another, vaccinated people are more likely to be infected with Omicron than they were with Delta, especially if they’re not boosted. Jeffrey Duchin, the health officer for Seattle and surrounding King County (where community vaccine requirements were lifted on March 1), told me that he doesn’t think mandating two shots (or one, for the Johnson & Johnson gang) in restaurants is useful anymore when the evidence shows that an additional dose provides much greater protection.

Compliance with the mandates on the part of businesses has been spotty too. Rubin, of Cook County, said that her health department could only give a warning to establishments that weren’t checking vaccine cards. Then one of the county’s hundreds of state’s attorneys might choose to take the offending business to court. “It’s not like the state police or even the county sheriff’s police were willing, for example, to help us,” she told me. And according to Duchin, even the businesses that wanted to comply with King County’s verification requirement sometimes had trouble doing so. Workers had no central database against which to check whether customers were immunized, and some were harassed when they asked for proof of vaccination. Telling businesses to refuse entry based on patrons’ vaccine status “deputizes sales clerks to be enforcement agents of the state, and that’s a difficult situation to be in,” Brewer said. Unlike in schools or workplaces, where each person’s immunization records need to be checked only once, sales clerks must see every customer’s card, every day.

The resulting chaos and confusion can help feed a backlash against vaccine mandates that is already intense and highly politicized. According to an Axios/Ipsos poll, support for vaccine mandates in stores and restaurants dropped between the beginning and end of February, from 51 percent to 41. The proportion of respondents who strongly support such policies fell by one-third, even though the ranks of the vaccinated—for whom vaccine requirements present the smallest hassle—grow by the day.

Mark Navin, a bioethicist who studies vaccine mandates and vaccine refusal at Oakland University, told me he worries that the exaggerated backlash to COVID-vaccine mandates could lead to more widespread refusal of routine childhood vaccines. Fights over vaccine requirements in movie theaters could also lead to court challenges that end up limiting the government’s ability to institute vaccine requirements at all. The Supreme Court already struck down the Biden administration’s workplace vaccination mandate. Legal challenges over restaurants “are not fights we want to have with this Court right now,” Navin said.

Americans are generally more willing to accept vaccine requirements that apply to people who spend a lot of time in high-risk settings (for example, hospital and prison workers) than those that cover wide swaths of the population (all college students, say, or every employed adult). The funny thing about the entertainment-sector mandates like New Orleans’s and Seattle’s and Cook County’s is that they’re sort of both. When it comes to COVID, a restaurant is definitively a high-risk setting. It’s also one that almost everyone goes to. Americans’ feelings about mandates there would likely be complicated even if the mandates did definitively work.

None of this is to say that lifting vaccine mandates now is the obvious path forward. Besides the clear, if poorly quantified, loss of safety in those settings, the change could add to a general sense that we need not spend another moment worrying about a pandemic that is still killing almost 1,500 Americans a day. But keeping the requirements in place, and doing little else, isn’t the way to achieve normalcy either.