In an executive order issued on April 2, Florida Gov. Ron DeSantis (R) announced that “vaccine passports reduce individual freedom and will harm patient privacy.” His alarm was echoed just a few days later by Texas Gov. Greg Abbott (R), who underscored the “important privacy issue” implicated by vaccine passports.
In contrast, New York Gov. Andrew Cuomo (D) has embraced a state-wide system of vaccine verification, calling it “another tool in our new toolbox to fight the virus while allowing more sectors of the economy to reopen safely.”
Once again, an important public health measure that could help get the pandemic under control has become a divisive political issue.
Initially conceived of as an appendage to national passports routinely used by international travelers, Covid-19 vaccine passports are already required by some countries, and Americans planning to travel internationally in the coming months will inevitably be asked to comply. Because people vaccinated against Covid-19 can gather more safely than those who are not vaccinated, individuals who attend a sporting event, go to a concert, matriculate at a university, take a cruise, board an airplane, even eat at a restaurant or enter a shop may be asked to provide vaccination evidence.
Applying the term “vaccine passport” to those situations is misleading. Let’s call it what it is—vaccine certification.
Vaccine certification is not an affront to individual liberty and it’s not a new story. More than a century ago the U.S. Supreme Court made clear that individuals were legally required to be vaccinated when the public’s health was threatened, and students have long had to show proof that they have been vaccinated in order to attend school.
At least for now, we have two options: We can limit or prohibit the operation of a wide range of businesses and activities until we achieve herd immunity, or we can more fully open the economy by allowing those who are vaccinated to get back to their “normal” lives.
Stopping the Spread and Reopening Society
The goal is simple—reduce the spread of Covid-19 and restart the economy. Enabling as many people as possible to safely be out and about is better than keeping everyone at home. Think of it as liberating a growing percentage of the population rather than a deprivation of everyone’s liberty.
Guidance from the Equal Employment Opportunity Commission permits employers to require employees to provide vaccine certification. Similarly, universities and schools are on firm legal ground when requiring students to provide proof that they have been vaccinated.
Those for whom vaccination poses a medical risk can refuse vaccination and expect reasonable accommodation under the Americans with Disabilities Act. Refusing vaccination for other reasons, like a sincerely held religious belief, is generally permitted, but five states (N.Y., Calif., Maine, W.Va., and Miss.) do not recognize religious exemptions. If an employer or educational institution were to deny religious exemptions to Covid-19 vaccination, it could become a flashpoint for litigation, given the Supreme Court’s increased focus on religious freedom.
Requiring vaccine certification in stadiums, theaters, restaurants, retail shops, hair salons, and other establishments is also legal. Businesses can screen out customers for all sorts of reasons, so long as they do not violate the Civil Rights Act of 1964 or state law, which prohibit discrimination based on projected classes like race, color, religion, and national origin.
Just because it is legal, however, does not mean that it is sensible. In many cases, particularly in smaller venues, the potential loss of revenue from excluding unvaccinated customers may serve as a disincentive to requiring vaccine certification, as is the time and trouble of checking patrons at the door. Vaccine certification is more likely at large venues such as stadiums, concert halls, and theaters with the potential to become super-spreader events.
Ethical, Privacy Concerns
Along with legal concerns, vaccine certification has raised both ethical and practical worries. Some have argued that unequal access to vaccination in the U.S. and globally raises questions about the equity of vaccine certification. Fortunately, the U.S. will soon have enough vaccine for everyone, which will ameliorate this domestic objection to certification. Extreme inequities remain globally and must be addressed, but those should not impact the use of vaccine certification within the U.S.
More pragmatically, we need better oversight and coordination of the public and private actors vying to provide the go-to Covid-19 vaccine certification app. Can they create a centralized registry in the absence of involvement by the federal government? Will states take the lead? How will one’s vaccination status be verified? For how long will certification last, as immunity to Covid-19 from these vaccines does not last forever?
Privacy concerns are at the heart of the executive orders in Florida and Texas prohibiting the use of vaccine certification, and while those concerns are overblown (the apps only reveal information about one’s Covid-19 vaccination status, and are not connected to one’s medical records), the public deserves some assurance about privacy protections.
In the end, Covid-19 vaccine certification is a crucial but short-term public health response to a pandemic that has taken a toll on every aspect of our lives. It is good for the economy, on firm legal footing, and ethically sound. Public health, not politics, must be our guide to successfully controlling the pandemic so that we can once again dine with friends, attend a summer baseball game, and enjoy the company of our neighbors.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Eric A. Feldman is the Heimbold Chair in International Law, professor of law, professor of medical ethics and health policy, and deputy dean for international programs at the University of Pennsylvania Carey Law School.