Despite entering a period of hope in the COVID-19 pandemic saga, the path leading back to normalcy remains a source of heated debate. Few topics highlight that better than the latest area of dispute: COVID vaccine passports.
Indeed, a world that spent nearly a year waiting and hoping for a COVID-19 vaccine got its wish in the waning months of 2020. But with that development came questions. Among them: whether businesses or governments can or should require individuals who seek to enter their domain to prove their vaccination status — and if so, how?
Governments and entrepreneurs around the world have responded with the concept of so-called “vaccine passports.” If you live in the United States and have recently been on Facebook, Instagram or Twitter, you’ve likely seen selfies of friends posing with a paper card inscribed with the vaccine they received and when they received it. The tech community, as it often does when it sees lots of paper, has since set out to craft more elegant, technology-driven solutions. Debate lingers about the best medium and format for a passport solution.
Crafting a viable passport is only part of the equation, however. The question remains how the private and public sectors might work together to sanction and utilize passport technology in a way that meets the needs the passport intends to serve. Driven by concerns about individual rights and privacy, the answer in some U.S. jurisdictions is shaping up to be: they won’t.
New York jumped in head first to develop and roll out a passport program — its Excelsior program is already available to the public. Other states like Hawaii are in the process of rolling out their own programs, while governors in other states, like New Jersey, Illinois and Pennsylvania, have cautiously voiced support for the concept.
Meanwhile, a growing caucus of governors have taken steps to curb the use of COVID-19 passports in their respective states. The most extreme example is Florida, where Governor DeSantis’s executive order prohibits the use of COVID passports not just in the public sector, but in the private sector as well. That order could be on a crash course with some private businesses’ reopening plans, including, for example, members of the cruise line industry planning to require proof of vaccination for all passengers and crew.
Employers considering requiring employees, customers or other individuals to provide vaccination proof as part of a reopening plan will need to monitor these developments. If nothing else, the splintering of states will make it difficult to institute a universal policy that applies throughout the United States.
The following is an overview of where the opposition to vaccination passports stands at the state level. We expect additional states to enter the fray in the coming weeks.
At the federal level, the Biden Administration has indicated that it does not intend to implement a COVID passport, nor will it create a vaccinations database. Notwithstanding that announcement, Rep. Andy Biggs (Ariz.) recently introduced federal legislation to preemptively ban federal agencies from creating a vaccination passport.
Where COVID passports will go in the weeks and months to come remains to be seen. In some parts of the world, from New York to Israel, they are already being used. But they are also running into steep challenges in other jurisdictions. For employers assessing a vaccine passport program, this is yet another important and evolving layer of consideration.
For more information, contact the authors of this article at firstname.lastname@example.org or email@example.com. Camille Olson, also a partner with Seyfarth Shaw, is a member of America's Newspapers board of directors. She can be reached at firstname.lastname@example.org.