Even as California nears economic and social reopening, the virus is widespread in other states – especially Michigan – and outside of the United States in countries that have received little or no vaccine. There is growing concern that the highly contagious varieties now in circulation could trigger a nationwide surge this summer.
Hence the interest in so-called COVID passports: digital certifications that can be accessed via the app and confirm the vaccinations against the coronavirus. They would allow vaccinated people to gather en masse at concerts and sporting events, gyms, and on cruises and flights to ensure their mutual immunity.
Dorit Rubinstein Reiss, professor of law at Berkeley, says vaccination records
are in fact legal. “The controversy is strictly political.”
The concept hit roadblocks almost immediately, however, as anti-vaccine opponents and many conservatives declared certification an invasion of privacy. Some business coalitions also withdrew, fearing a backlash from consumers. The Biden government has stated that it will not enforce a mandate to review or maintain a federal vaccination database. And the governors of Texas and Florida have announced bans on vaccination certificates, preventing businesses and government agencies from requesting them.
Indeed, many civil libertarians have questioned the essential legality of vaccination records. On this point, however, there is no significant ambiguity, says Dorit Rubinstein Reiss, professor of vaccination law and policy at Berkeley.
“They are legal,” says Reiss. “The controversy is strictly political. That said, the language is sloppy. There is no single “passport”. There are a number of tactical questions that affect the vaccination certificate. “
The rulings of the US Supreme Court have upheld vaccination laws. In a 1905 Jacobson v Massachusetts case, the court stated that states had the power to require and enforce compulsory vaccinations. And in breeding v. King in 1922, the court ruled that the San Antonio, Texas School District had a constitutional right to ban unvaccinated students from its campus.
Currently, employers and government agencies can require vaccinations, which are subject to certain restrictions set out in the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990, Reiss says.
Aside from legality, there is the question of public health. Are vaccination records a credible mechanism to keep people safe?
“Under the Civil Rights Act, employers must take reasonable precautions for an employee who expresses a sincere religious belief that prevents vaccination,” Reiss said. “However, the employer could continue to require vaccinations for such employees if it puts an undue burden on the company’s operations.”
Likewise, disabled workers can be exempted from vaccination requirements if their disabilities raise safety concerns, says Reiss.
“Employers must participate in a good faith process to determine if the disability qualifies for an exemption and if the worker can be protected from COVID while at work,” she says. “An op-out can depend on the availability and effectiveness of PPE [personal protective equipment] like masks and face shields. Here, too, the employer can still request vaccinations if this causes the company “unreasonable difficulties”. “
Likewise, universities and other public institutions can require mandatory vaccinations, subject to the same provisions of the Civil Rights Act and the ADA, Reiss says.
Still, some uncertainty remains about the issue due to the process used by the U.S. Food and Drug Administration to give COVID vaccines the go-ahead. The FDA approved the vaccines under an Emergency Use Authorization (EUA) – essentially confirmation that the vaccines were accelerated and not subject to standard regulatory procedures. Technically, they are neither approved nor licensed nationwide.
“Under the EEA, the Minister of Health and Human Services allowed the vaccines to be used, but the use of these vaccines remains a matter of personal choice,” says Reiss. “It is unclear where all of this is going as the courts have not yet laid out anything.”
“There are so many barriers to vaccination that passports aren’t exactly fair.” -John
Swartzberg
Unions could also be involved in vaccination requirements, she says. “A unionized workforce’s collective agreement can limit an employer’s ability to request vaccinations without negotiating with the union.”
But when it comes to travel requirements, Reiss says: “There is not much that can be done to legally resist this.” Foreign countries have the sovereign power to require vaccination documents, and airlines and cruise lines are generally allowed to impose restrictions as well.
Aside from legality, there is the question of public health. Are vaccination records a credible mechanism to keep people safe?
John Swartzberg, Emeritus Clinical Professor of Infectious Diseases and Vaccine at Berkeley’s School of Public Health, agrees – with a few caveats. First, like Reiss, he does not believe that “vaccination pass” is the best possible name for vaccine certification.
“Before I endorse the idea, I want to make sure that anyone who wants a vaccination can get it,” says Swartzberg. “And by that I don’t mean that vaccines will in theory just become available to everyone, as was the case when California on April 15th approved vaccinations for everyone aged 16 and over. I mean anyone who wants one can easily get this within a 15 minute drive. There are so many barriers to vaccination that passports aren’t exactly fair. “
Regardless of how COVID passports are legally issued, the politicization involved is unlikely to subside, Reiss says.
The situation should be fairer by the summer, says Swartzberg, “and then a lot of good could result from these certifications. If you knew everyone at the airport, at your airline, at a baseball game, or at your favorite restaurant, you would feel much safer visiting places and doing the things you enjoy. I’m in my 70s now and I want to teach next semester. I’ll feel much better on campus knowing that everyone – students, faculty, and staff – is vaccinated. “
Swartzberg emphasizes that vaccine certifications are nothing new.
“I grew up with the yellow card, the yellow fever vaccination certificate that was widely used for international travel,” says Swartzberg. “We need a thorough discussion on COVID matters, including vaccination records – but everything is politicized, especially in states like Texas and Florida.”
And no matter how COVID passports are legally issued, the associated politicization is unlikely to subside, says Reiss.
“For certain people they are a collective call,” she says. “The implementation will likely be gradual. As I said, they are generally legal – but I expect them to remain controversial. “
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