Recently we discussed the launch of the Excelsior Pass, an application developed by the State of New York in conjunction with IBM, that will allow businesses to confirm that customers have tested negative for COVID-19 or have been successfully vaccinated. The application was developed in response to an expected increase in travel due to the introduction of COVID-19 vaccines. The legal briefing may be read here.
Despite New York’s development of the Excelsior Pass, other states are against the use of a “vaccine passport” and have passed new legislation banning any requirement for their use. For example, Florida Governor Ron DeSantis enacted a statewide ban of all businesses and government entities from requiring a “vaccination passport,” or documented proof of vaccination for COVID-19. Pursuant to this ban by the Governor, any businesses that does not comply with the order is ineligible for state grants or state-funded contracts. Similarly, Texas Governor Greg Abbott banned state agencies, political subdivisions and organizations receiving public funds from creating "vaccine passports" or otherwise requiring someone to provide proof of a COVID-19 vaccine in order to receive services.
On April 7th, the Biden administration clarified whether vaccine passports will be mandatory at the Federal level. The White House announced that it will not require (or issue) vaccine passports, and there will be no federal vaccination database, nor a government mandate requiring a vaccination credential. The administration is concerned that any requirement has the potential to be used unfairly due to disparities in access to the vaccines.
The administration has been clear that it would defer to private companies if they wanted to implement some type of vaccine passport system in which individuals would have to provide proof that they received one of the coronavirus shots. White House Press Secretary Jen Psaki said the administration would provide guidance “that provides important answers to questions that Americans have, in particular around concerns about privacy, security or discrimination soon.”
The main proponents of this technology are businesses and colleges that are pushing for people to show proof of COVID-19 vaccination as a way to safely resume pre-pandemic operations. For instance, Norwegian Cruise Line Holdings plans to resume its cruises from U.S. ports starting July 4, 2021 and will require proof of vaccination from its guests and crew members. Recently, Brown University and Northeastern University joined a group of universities that will require students get a COVID-19 vaccine in order to return to campus in the fall. The expectation is that other schools and private businesses will follow suit in the upcoming months as re-opening becomes a greater priority.
Despite the position of the Federal government, and the different policies concerning the use of vaccine passports by various States, it is important to note that private businesses have broader flexibility and can require the use of vaccine passports. Throughout the pandemic private businesses have required customers and workers to submit to temperature checks, fill out COVID-19 questionnaires, and other affirmations, and have offered perks to encourage vaccination. A logical next step for many businesses may be to require the use of vaccine passports as a condition of employment or entry for customers.
Ultimately, business owners will need to weigh the advantages and drawbacks of requiring the use of vaccine passports. Owners of “public” business that decide to implement the technology should be aware of the potential of discrimination claims and challenges from employees and customers. Furthermore, owners (and customers) should pay attention to state policy on the use of vaccine passports or related policy concerning a certification of vaccination status, as it may be updated multiple times in the upcoming months.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC