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Judge says Norwegian Cruise can require vaccination proof, despite DeSantis ban

A Florida law bans companies from demanding proof of vaccination against coronavirus

The Norwegian Encore cruise ship. (Tribune News Service/Getty Images)
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Norwegian Cruise Line Holdings received a federal judge’s blessing on Sunday to flout the Florida law that bans companies from demanding proof of vaccination against the coronavirus.

It will be the first cruise operator to require every person on board in Florida to be fully vaccinated, in defiance of Gov. Ron DeSantis (R), whose office has called the lawsuit “meritless” and the company’s vaccine policy discriminatory.

In a 59-page ruling, U.S. District Judge Kathleen Williams granted the cruise company’s request for a preliminary injunction blocking the state from enforcing its law against so-called vaccine passports. She said the company was likely to prevail on the basis of its claims that the law infringes on its rights to free speech and puts a heavy burden on interstate commerce. And she agreed Norwegian would “suffer significant financial and reputational harms” if the law were to be enforced in the meantime.

In a statement Monday morning, the governor’s office said it disagreed with the judge’s legal reasoning and would appeal the ruling.

“A prohibition on vaccine passports does not even implicate, let alone violate, anyone’s speech rights, and it furthers the substantial, local interest of preventing discrimination among customers based on private health information,” the statement said.

Norwegian Cruise sues Florida over DeSantis ban on vaccine passports

A U.S. judge on Aug. 8 allowed Norwegian Cruise Line Holdings to flout the Florida law that bans companies from demanding proof of vaccination against covid-19. (Video: Reuters)

Under the law, first issued as an executive order by DeSantis in April, Norwegian could have faced millions of dollars in fines each time a ship left port. The company is scheduled to sail the Norwegian Gem, its first ship in nearly a year and a half from Florida, on Aug. 15. That departure from Miami comes at a time when the state’s coronavirus case numbers are exploding amid a new wave sweeping the country, fueled by the highly transmissible delta variant.

Williams wrote that the cruise company had “demonstrated that public health will be jeopardized if it is required to suspend its vaccination requirement,” but lawyers for the state had shown “no public benefit from the continued enforcement” of the law against Norwegian.

Norwegian Cruise Line Holdings — which includes Norwegian Cruise Line, Oceania Cruises and Regent Seven Seas Cruises — has said for months that the safest way to cruise again is if every single person on a ship is vaccinated. CEO Frank Del Rio held fast after Florida passed its vaccine passport ban, threatening to move his ships from the state. Norwegian says it will keep the vaccine mandate in place until at least Oct. 31.

“The company’s policy of 100% vaccination of guests and crew was in place without issue in every port it sails from around the world except for Florida,” the operator said in a statement Sunday. “Despite the ongoing global pandemic and the accelerating spread of the Delta variant, Florida prohibited the company from requiring vaccine documentation which the company believed would enable it to resume sailing in the safest way possible.”

Finally, Norwegian filed suit in federal court against Florida’s surgeon general last month.

“While litigation is a strategic tool of last resort, our company has fought to do what we believe is right and in the best interest of the welfare of our guests, crew and communities we visit in an effort to do our part as responsible corporate citizens to minimize, to the greatest extent possible, further spread of covid-19 as we gradually relaunch our vessels,” Daniel S. Farkas, executive vice president and general counsel of Norwegian Cruise Line Holdings, said in the statement.

Norwegian threatens to pull cruise ships from Florida over DeSantis vaccine passport ban

The state sued the Centers for Disease Control and Prevention earlier this year over the long list of rules it had in place for cruise lines to start operating again — including a requirement that ships go on test cruises unless 95 percent of passengers and crew will be vaccinated. A judge agreed that the agency had overreached and said its requirements would turn into recommendations in Florida. Despite that change, cruise lines are voluntarily following the CDC’s guidelines.

Other cruise companies operating from Florida have adapted to the law, allowing some unvaccinated passengers to sail but requiring them to undergo extra testing and subjecting them to additional restrictions on board. Carnival Cruise Line requires potential cruisers who are not vaccinated to apply for an exemption in advance to make sure its ships will sail with at least 95 percent of passengers vaccinated.

Unlike competitors, Norwegian brands are not allowing unvaccinated children to sail.

“The health and safety of our guests, crew and the communities we visit is our number one priority, today, tomorrow and forever,” Del Rio in a statement. “It’s not a slogan or a tagline, we fiercely mean it and our commitment to these principles is demonstrated by the lengths our company has gone through to provide the safest possible cruise experience from Florida.”

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In her ruling, Williams takes aim at the state’s argument that the law is meant to protect residents’ medical privacy and prevent discrimination against unvaccinated people. She points out that passengers who are not vaccinated or refuse to show proof have to pay more to get less on their cruise.

“If combatting discrimination were the goal, merely banning the exchange of covid-19 vaccination documentation is an ineffective way to accomplish this objective,” the ruling says, “because the [Florida law] does not directly prohibit the treating of unvaccinated persons or those who decline to verify their vaccination status by businesses and employers differently.”

The ruling also points out that Florida’s prohibition against requiring documentation of vaccination is in disagreement with laws in other places where cruise ships operate.

Royal Caribbean, for example, announced recently that it will start requiring documentation of full vaccination for passengers 12 and older on two Florida-based ships that visit the U.S. Virgin Islands until Oct. 31. The cruise line says the territory’s government plans to make full vaccination of all eligible passengers a requirement for a ship to be allowed into St. Thomas.

“It is undisputed that nearly every country and port that [Norwegian brands] intend to set sail to during the remainder of the year have varying, often complicated requirements,” the ruling says. “It is also clear that covid-19 vaccination documents are the fulcrum of many of these requirements.”