The Legality of Coronavirus Immunity Passports and Related Concerns
As the coronavirus ravages the world many are hoping the development of a vaccine will quell the fire. A vaccine may be approved for use in early 2021, but this will only be the first step in a long and difficult distribution process.1 Once available, people who have received the vaccine and are immune to the virus may be able to return to pre-pandemic normalcy, but this will necessitate a reliable way to track who has been vaccinated. One proposed method of tracking is with immunity passports, a likely digital certificate used to confirm an individual’s vaccination and immunity to the disease.2 While an immunity passport could provide a restriction-free life and is likely legal, the disparate impact, perverse incentives, and concerning precedent created by their use outweigh the benefits.
The only law protecting health information in the United States is the Health Insurance Portability and Accountability Act, commonly known as HIPAA.3 The protections provided by HIPAA protections are significantly narrower than one might think. HIPAA prevents individually identifiable health information from being disclosed by health providers or their business associates without consent.4 In the midst of the pandemic this protection has been narrowed further as the Department of Health and Human Services declared a public health emergency and curtailed the enforcement of HIPAA violations for its duration.5 This declaration was renewed October 2, 2020 and remains in effect today.6 As a result, the broad goal of controlling the spread of the coronavirus is now an enforceable justification for disclosing personal health information.7 Further, HIPAA does not apply to schools, private employers, and businesses meaning for as long as the public health emergency is in effect there is likely no law preventing third-parties from sharing an individual’s coronavirus vaccination status, nor is there any law preventing entities from requesting an individual’s vaccination status.8 The subsequent denial of services based on vaccination status is unlikely to be covered by anti-discrimination statutes as the unvaccinated are not considered a “protected class” under federal law.9 Combined, the limited protections of HIPAA and anti-discrimination statutes leave no federal law in the way of the potential widespread implementation and use of immunity passports.10
If used, a coronavirus immunity passport could help life return to normal, but their use is not without risk. For one, wealthy individuals will likely have greater access to the vaccine leaving the poor and marginalized populations, most in need of employment opportunities, to be denied access at a higher rate.11 Additionally, the need for an immunity passport to live a restriction-free life creates an incentive for fraud.12 Fraudulent passports in turn increase the risk of the disease spreading as those without immunity will move about freely.13 Finally, and perhaps most concerning, is the potential of the coronavirus immunity passport to set the groundwork for a more extensive biological passport; employers, schools, and business could begin demanding access to pre-existing conditions, mental-health results, or genetic information creating entirely new forms of discrimination.14 While the passports may temporarily allow for less restrictions, these risks carry the potential to have a long-term negative impact on society and the laws’ inability to mitigate them makes the widespread use of immunity passports a proposition which does more harm than good.
Katie Thomas and Jesse Drucker, When Will You Be Able to Get a Coronavirus Vaccine?, N.Y. Times (Sept. 17, 2020), https://www.nytimes.com/2020/09/17/health/covid-vaccine-when-available.html [https://perma.cc/6YAU-D2UR] (last updated Oct. 23, 2020).↩
Rebecca C H Brown et al., The Scientific and Ethical Feasibility of Immunity Passports, The Lancet, https://www.thelancet.com/journals/laninf/article/PIIS1473-3099(20)30766-0/fulltext [https://perma.cc/2TA9-AJKB].↩
See generally Health Insurance Portability And Accountability Act, Pub, L No. 104–191, 110 Stat. 1936 (1996).↩
See 45 C.F.R. § 164.502.↩
Dep’t of Health and Human Servs., 4153-01-P, Notification of Enforcement Discretion under HIPAA toAllow Uses and Disclosures of Protected Health Information by Business Associates for Public Health and HealthOversight Activities in Response to COVID-19 (2020), https://www.hhs.gov/sites/default/files/notification-enforcement-discretion-hipaa.pdf [https://perma.cc/7AVM-H6SF].↩
Pub. Health Emergency, https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-2Oct2020.aspx [https://perma.cc/LU3A-E3CV].↩
Dep’t of Health and Human Servs., supra note 5. ↩
See generally Dep’t of Health and Human Servs., https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html[https://perma.cc/X79T-H83V].↩
See National Archives, Equal Employment Opportunity Terminology, https://www.archives.gov/eeo/terminology.html[https://perma.cc/A4DM-VMTD].↩
Dep’t of Health and Human Servs., supra note 8., National Archives, Equal Employment Opportunity Terminology, supra note 9.↩
Natalie Kofler and Francoise Baylis, Ten Reasons Why Immunity Passports Are a Bad Idea, Nature, https://www.nature.com/articles/d41586-020-01451-0[https://perma.cc/3TSL-ZKQX].↩