Elio’s Pickle

If restaurants are also public health gatekeepers, can they demand my cholesterol numbers before I can order spaghettini primavera? Have me weigh in before that slice of molten chocolate cake?

Elio’s is an upscale Upper East Side Italian restaurant in Manhattan. New York City requires diners to document their vaccination status. Unvaccinated Sarah Palin ate dinner there January 22 and tested positive for COVID-19 on January 24.  Elio’s apparently didn’t check Palin and New York apparently isn’t going to check further into Elio’s. That released a torrent of spleen and vitriol in The New York Times.

I’ll prescind from the double standard of politicians and their families who impose draconian COVID rules they themselves violate—at tony California restaurants, Washington weddings, or Michigan marinas.  

I ask instead: What business is it of restaurants to be checking vaccination status?  

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The knee-jerk argument would be that, in keeping the unvaccinated out, restaurants protect their clientele from infection. Given the fact, however, that even the vaccinated can catch and transmit COVID-19, the regimen does not in fact really protect people from infection. It might protect people from being infected by A, but not by B. 

Now that’s kind of like being “somewhat pregnant.” One either is or isn’t. There’s no halfway point. So, as a means for “protecting people from COVID-19,” it’s at best a half measure. But half measures, like “partially pregnant,” are dubious propositions. Do I feel better knowing my COVID-19 infection might come from one of the great washed masses?

Restaurants necessarily involve eating: it’s a small minority that goes for the atmosphere, and even they have to patronize the establishment. Until our COVID czars mandate that restaurants feed customers by IV tube, those card-carrying potential infectors who document their rectitude at the door behind triple masks will have to remove those masks to enjoy Elio’s $49 tuna. So, we potentially have another vector for people to be infected by C, D, and E.

My point? As a public health regimen, vaccine passports at restaurants only reduce some potential chance of infection, while others remain equally available. If the problem of COVID-19 is that and not from whom you get it, the protocol has limited efficacy.  

Traditionally, regimens that affect an entire class are examined for their discriminatory impact by measuring the scope of their reach versus the efficacy of their effect which, in this case, is at minimum debatable. As long as people have to de-mask to eat, and as long as people can spread COVID-19 irrespective of vaccination status, one can ask whether denying restaurant access to unvaccinated persons is not so much a “public health measure” as a campaign to stigmatize and pressure a certain class to conform to policymakers’ desiderata. As long as restaurants are open, the chance of getting COVID-19 in them exists.

Some advocates of this policy adapt an old slogan: “no shoes, no shirt, no shot, no service.” That logic would work if the policy was the restaurant’s. But it’s not. The mandate is the city’s, which has dragooned private establishments into imposing and enforcing it. The fact that restaurants seem half-hearted in enforcement makes that apparent. Whether the state should be able to co-opt social and commercial institutions like eateries into its policymaking on so broad a scale is a separate social justice question.

A restaurant’s job is to feed me, not check my health. Before COVID, anybody would have recognized that my private health information is private, i.e., I don’t have to share it with the maître d’ or busboy of any restaurant. That’s why you spend a half hour at the doctor’s office signing HIPAA and medical release forms before you see a physician: medical information is supposed to remain private, not the business of the coat-check girl at Elio’s.

The COVID coterie, of course, will tell you that HIPAA regulates medical personnel and that trying to invoke it in the case of Elio’s is unjustified. One must ask, however, how bizarre are some people’s cramped notions of “medical privacy” if it is only a safeguard against medical professionals making unauthorized disclosure, while the state can otherwise compel anybody to reveal that information to anybody it designates just by making a rule. This is what critics attack when they talk about the deficiencies of “procedural democracy.”

Advocates of restaurant vaccine passports claim it’s just another public health standard. Restaurants must provide a safe environment. Just as they must apply sanitary standards in the kitchen, so they are applying standards in the dining room.

But wait! The sanitary standards in the kitchen are under their control: the restaurant can make me sick if they serve spoiled food. They are responsible for giving me botulism.  

But if I get infected by a customer, it’s the customer that did it, not the restaurant. And I can also be infected by a customer who is vaccinated. So, as long as restaurants have customers, the risk of catching something from somebody exists.

What COVID maximalists won’t tell us is where, in the name of “protecting the public,” their interference stops. If the maître d’ can check my vaccine card, can he be mandated to take my temperature? If we really want to stop any COVID-19 droplets that might evade our temporarily displaced masks during the process of eating, can restaurants be mandated to deliver that scallopine piccata intravenously?

If restaurants are also public health gatekeepers, can Elio’s demand my cholesterol numbers before I can order spaghettini primavera? Have me weigh in before that slice of molten chocolate cake? Document my family history for no alcoholics before I imbibe? 

Obviously, I am moving into reductio ad absurdum, but that is where our policies are leading us. Logically, the connection to their stated goals is debatable. Their connection to social control, however, seems very clear. The question then becomes: Is that the kind of society we want?

[Photo: Elio’s Restaurant]

  • John M. Grondelski

    John M. Grondelski (Ph.D., Fordham) is a former associate dean of the School of Theology, Seton Hall University, South Orange, New Jersey. All views expressed herein are his own.

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