My summers as a youth were spent swimming and riding bikes with my siblings and friends. One of our favorite places to ride after an afternoon swim was a locally owned convenience store. A large sign at the entrance read “No Shirt, No Shoes, No Service!” And they meant it. My brother once walked into the store wearing only his swim trunks and the clerk promptly kicked him out. With news of vaccine passports and special smartphone apps to verify a coronavirus vaccination, might that same convenience store add proof of vaccination to its list of clothing requirements? “No Shoes, No Mask, No Vaccine Passort, No Service!” Are vaccines and proof of full vaccination the silver bullet that will allow us to emerge from the safety of our virtual cocoons to travel, attend a concert, or a sporting event? Will a vaccine passport allow us to shed our masks and reveal our faces to the world? These are the questions that are being asked as vaccine passports are being publicized as the golden ticket to our pre-pandemic lives.
Vaccine passports are designed to be a mobile platform application that allows a person to carry their vaccination certificates with them. Think of it as a digital wallet that allows storage of health information, including test results and proof of vaccination through a smartphone application. Instead of carrying around a tattered vaccination card, a QR code on a smartphone will confirm vaccination status to travel, go to a movie, or attend a sporting event. Travel and tourism industries were hit hard by the pandemic; passport programs may enable people to have more confidence in booking a trip. However, like masks, shutdowns, and school closures, passport programs have become the latest source of political tension.
Several countries, including Israel, China and Bahrain, have already begun using vaccine passports. The European Union has announced plans for a Digital Green Certificate that will verify someone has received the COVID-19 vaccine or has recovered from the virus. The hope is these “passports” or “certificates” will allow people to travel more freely and avoid certain travel restrictions like testing and quarantining. While the Biden Administration has made it clear that it will not be the role of the federal government to issue vaccine passports, companies like Microsoft and IBM are developing vaccine passport programs for widespread use in the US.
In late March, Democratic Governor Andrew Cuomo announced a vaccine passport program, called the Excelsior Pass, making the state of New York the first state to implement such a program. This no-cost vaccination passport program is available to all persons vaccinated or COVID-19 tested in the state of New York and is being touted as the quickest and easiest way to prove a person’s health status, allowing them to attend sporting events, arts performances, and more. The pass is available on the Apple App Store and Google Play Store and, in case you do not have a smartphone, you can print your pass and carry it along with you. However, Republican Governors, such as Greg Abbott, Governor of Texas, and Ron De Santis, Governor of Florida, have flatly rejected the use of such vaccine passport programs.
Governor Abbott issued Executive Order GA-35 on April 5th prohibiting state agencies and political subdivisions, including school districts, from adopting or enforcing any policy or rule that requires documentation of vaccination status as a condition of receiving any service or entering any place. This order also applies to any public or private entity that receives public funds. Governor Abbott also called on the legislature to enact a law to address privacy issues associated with vaccination passport programs. On May 3rd, 2021, Governor Ron DeSantis signed legislation banning vaccine passports and preventing a business or governmental entity from denying services based on vaccination status. Governors Abbott and DeSantis cited privacy concerns as arguments against “vaccine passport programs.”
The biggest ethical challenge for the passport programs centers around the distribution of the COVID-19 vaccines. Opponents of vaccine passport programs argue the vaccines have been distributed unequally, both in the U.S. and overseas. Civil rights leaders argue that vaccines are not accessible in communities of color as many of these residents do not have access to vaccine sites in their neighborhood, transportation, or internet access. Reuters reports “richer and more developed countries” have better health care infrastructure and thus are able to manufacture, acquire, and administer doses. The Duke Global Health Innovation Center Launch and Scale Speedometer which monitors vaccine purchases has found that high-income countries already own more than half of all global doses purchased, and it is estimated that there will not be enough vaccine doses to cover the world’s population until 2023.
On April 27, 2021, the CDC issued new “interim” public health guidance and for the first time issued recommendations that are different for those who are vaccinated against the coronavirus and those who are unvaccinated. The CDC’s updated guidance recommends that fully vaccinated people may attend small outdoor gatherings with vaccinated and unvaccinated people without a mask and may dine at an outdoor restaurant with people from different households without a mask. But the CDC guidance is just that: “guidance.” Mask mandates differ across the country, and some people continue to wear masks despite the updated public health guidance. For example, President Biden and the First Lady were recently criticized for wearing masks at an outdoor event. The Bidens have been fully vaccinated for months, yet they wore masks during an outdoor event and were criticized for it. Perhaps the Bidens didn’t get the memo about the CDC’s updated guidance or perhaps they didn’t really understand how to apply it to the event they attended.
Applying the ever-evolving public health guidance is confusing. Perhaps a vaccine passport would simplify our lives, allowing us to show our smartphones instead of wading through pages of public health guidance to decipher its application to a particular activity. We live in a digital world and smartphones and digital apps are a part of our daily lives. Our smartphones are already capturing and storing a variety of health information from the amount of daily exercise to the amount of sleep we are getting. Connect your phone to a health application and even more health data is tracked and stored. While vaccine passports seem to be the way back to all the activities we enjoyed before March 2020, we must acknowledge there are many challenges and questions surrounding the use of such programs, including issues of equity and access, lack of standards, and privacy and security. And, without coordination by the federal government, a national passport program is unlikely to gain much traction. While states have broad powers to implement a vaccine passport program, they will need to balance public health risks and economic growth without restricting constitutional rights.
While many of us are craving that overseas vacation or attending a Shakira or Coldplay concert in person, there remains no worldwide agreement about when or how we are going to be able to do this. Like all things related to the pandemic, there will likely be a patchwork of various requirements and guidance for the vaccinated and unvaccinated that will vary from activity to activity, state to state, and country to country. Many of us will likely carry around what will become a frayed little card as proof of vaccination along with a mask just in case our favorite convenience store requires it.
Lisa Paul, Associate Attorney, J. Cruz and Associates, LLC
