Legal Implications Surrounding Immunization Passports
While people are eager to return to “normal” pre-COVID life, including travelling internationally and attending large gatherings, what risks will they be willing to take regarding their privacy?
There has been discussion about a vaccine or immunity passport, which would function not like a traditional paper passport, but rather as an app or similar digital system that can offer proof of vaccination, proof of antibodies, or proof of a negative test result.1 While some may contest the security of such an app, others may argue that digital files are in fact more secure than paper documents that can be forged.2
While some consumers may complain that carrying sensitive health information on their phones is an unreasonable demand fraught with privacy risks.3 This concern seems unrealistic considering we are already living in a world of electronic health records.4 Many people have already overlooked security in the name of efficiency and convenience, as they register for patient portals to view their medical records, test results, and insurance statements. Furthermore, the current health pandemic has solidified the push to no-contact electronic records, especially considering COVID test results are all sent electronically.
Furthermore, the concept of states or nations requiring vaccine certificates is nothing new – countries in Africa have long required travels to prove in customs that they have been vaccinated against yellow fever.5 University students in Florida and Colorado must have meningococcal vaccinations6 and even Fordham students are required by New York Law to be vaccinated against various diseases such as measles and mumps, and sign a meningitis response form.7
The significant difference is the much larger scale at which this information will be provided. Instead of being used to enter certain countries or be enrolled in universities, it could be used more broadly to admit individuals into notoriously crowded spaces such as sporting events, music festivals, or even the workplace.
The larger legal implications will likely center around discrimination, specifically disparate impact on race, ethnicity, country of national origin, or socioeconomic status, especially as the vaccines pertain to employment.
Specifically, this could present legal issues with the American with Disabilities Act, which could possibly be interpreted broadly enough to allow lack of immunity to be considered a physical impairment protected by the statute.8 This would prohibit employers from discriminating against workers based on immunity status.9
Although the EEOC has classified COVID-19 as a “direct threat” to the workplace, allowing employers to test employees before coming to work,10 a lack of immunity is not a direct threat to the workplace, so employers have to follow ADA guidelines.11
While some experts think vaccine passports will ultimately become unnecessary as COVID cases and fatalities fall,12 and things go back to “normal,” I think it possible that this health crisis will simply force companies and individuals to take precautions they should have been taking all along. COVID is not going to miraculously disappear, and even if it were to, there will always be deadly diseases—even the seasonal flu—that infect fewer people if health certificates are required for travel.
Alex Hern, Vaccines Passports What Are They and Do They Pose a Danger to Privacy?, The Guardian (Jan. 15, 2021, 12:15 PM) https://www.theguardian.com/society/2021/jan/15/covid-vaccine-passports-what-are-they-and-do-they-pose-a-danger-to-privacy [https://perma.cc/4RJ6-JUKB].↩
Vaccine Passports Promise Safer Travel; Privacy Issues Remain, PYMNTS (Jan. 4, 2021), https://www.pymnts.com/coronavirus/2021/vaccine-passports-promise-safer-travel-privacy-issues-remain/ [https://perma.cc/X8J5-JMZ4].↩
Consumer Bob & Nicholas Kjeldgaard, Dissecting the Privacy Concerns of a Vaccine Passport, NBC San Diego (Feb. 18, 2021, 9:18 AM), https://www.nbcsandiego.com/news/investigations/nbc-7-responds/dissecting-the-privacy-concerns-of-a-vaccine-passport/2524061/ [https://perma.cc/W7HH-M84L].↩
PYMNTS, supra note 2.↩
Seema Mohapatra, Why COVID-19 Immunity Passports May Violate US Law, The Conversation (May 27, 2020, 8:22 AM) https://theconversation.com/why-covid-19-immunity-passports-may-violate-us-law-138165 [https://perma.cc/K7XP-4JXZ].↩
Health Forms, Fordham University, https://www.fordham.edu/info/20022/health_center/2992/health_forms (last visited Feb. 18, 2020) [https://perma.cc/3GT6-RNA5].↩
Mohapatra, supra note 6.↩
PYMNTS, supra note 2.↩