Mandated or Not, Vaccine Passports May Become De-Facto Standard-The HSB Blog 9/27/21



Our Take:


With the increased momentum towards reopening the economy, vaccine passports will become important in the United States (U.S) even if they are not mandatory. Vaccine passports, which serve as official proof of vaccination are now required by several countries for traveling and accessing social and recreational spaces. In the U.S, mandating vaccine passports has been rife with debates with several states either banning its usage outright or partially allowing private businesses to choose to mandate vaccination. Notwithstanding the general push back against vaccine passports, ease and convenience considerations could incentivize an increased COVID vaccine uptake.


Key Takeaways:

  1. The U.S. lacks a national framework for vaccine passports so digital vaccination credentials are largely led by state and private initiatives but have been hamperd by personal rights, privacy and equity concerns.

  2. While no state has mandated the use of vaccine passports, 7 cities require that customers must undergo vaccine checks through a digital vaccine verification system before entering businesses.

  3. Your chances of dying from a confirmed case [of COVID] roughly double with every five to eight years of age

  4. Twenty states have banned vaccine passports either through executive orders or legislation.

The Problem:


American culture is deeply rooted in individual liberties and states rights. Any attempts perceived to depart or infringe on the right to choose or personal freedom are resisted as illustrated by protests against mask mandates in a number of cities and states. Vaccine passports pose a big challenge as it requires the extraction of possibly private data and more importantly vaccination. Requiring vaccine passports to gain entrance into restaurants or sports venues could be interpreted as compelling Americans to get vaccinated and a subtle enabler of discriminatory practices. Furthermore, the legal basis for such requirements is currently working its way through the courts, and the extent to which the vaccine protects the vaccinated against current and new variants is a matter of constant scientific testing. In addition to the debates around civil liberties, the debate around vaccine passports centers around three issues: 1) the ability to use vaccine passports as de facto tracking devices, 2) the basic legality of vaccine passports, and, 3) potential inequities raised or made more severe requiring vaccine passports.


An argument can be made that requiring vaccine passports would expose those who don’t have them to being tracked and potentially prosecuted for participating in events that require passports. In addition, there are concerns about possible exploitation or fraudulent use of data in the absence of regulations and guidelines. For example, immigrant rights activists worry that tracking features could be used to monitor the movements of undocumented immigrants and potentially expose them to arrest or even deportation. In addition, the very legality of government organizations, businesses, and employers to require vaccine passports is being questioned by civil libertarians and those politically opposed to such mandates.


While numerous legal opinions have taken the position that businesses can lawfully mandate employees to get the COVID vaccine, provided exemptions are made for legitimate medical or religious grounds, this is actively being challenged in the courts. Similarly, school mandates that do not offer exemptions or testing as an alternative are being challenged (six states do not offer exemptions on personal or religious grounds). Legal clarity on this issue is expected to take some time as this issue winds its way through the courts. As we go to publication, the U.S. Court of Appeals for the Second Circuit blocked the imposition of the New York City school vaccine mandate for teachers and other professionals. According to Reuters, the court “granted a temporary injunction to a small group of public school teachers and paraprofessionals who are challenging the mandate, which does not allow for weekly testing as an alternative.” Conversely, the Federal court and the Court of Appeal for the Seventh Circuit ruled that Indiana University’s COVID mandate requiring students to get vaccinated was lawful.


In terms of potential inequities created by a vaccine passport requirement, several studies show that blacks and Latin Americans were almost 50% less likely to receive the COVID vaccine compared to their white counterparts. While some may choose not to get vaccinated for a variety of reasons, substantial research exists that underresourced minority communities lack access to the vaccine compared to other non-minority communities. Hence, vaccine passports may potentially exacerbate existing inequities of the COVID pandemic by punishing people who are willing to get vaccinated but unable to access the vaccines. Moreover, some have argued that the so-called “digital divide” could further alienate Americans that lack access to either broadband internet or smartphones. While this argument holds less weight with respect to smartphone access than broadband (approximately 90% of people have smartphones, compared to lower percentages for broadband), this could still be an issue for those who may have limited data plans or are not as technologically sophisticated in the use of their phones (potentially making paper vaccine passports an option might address this issue).

The Backdrop:


Although vaccine passports seem novel they actually date back as early as the 1800s where proof of immunization was required for smallpox. For the COVID pandemic, several nations have adopted a similar measure in the form of pass systems or vaccine mandates before people can get into indoor events. While France recorded a drop in Coronavirus infection a month after implementing vaccine passports, England recently reneged on immediate plans of adopting vaccine passports while keeping it as a likely option. Italy and Israel are implementing a green pass system with Israel achieving an impressively fast vaccine roll-out. In the United States, President Biden has put forth a 6-point agenda with the goal of creating an unprecedented path to vaccine mandates especially for businesses with 100 or more employees by announcing a vaccine or test mandate. President Biden’s mandate coupled with the FDA’s full approval of the Pfizer COVID vaccine likely puts vaccine mandates on a stronger legal footing and eliminates a roadblock to vaccination for some Americans, likely leading to an increase in the number of vaccinated Americans. This is because, prior to the FDA’s full approval of the Pfizer vaccine, many individuals had used this as a rationale for not getting the vaccine and several states had used the fact that vaccines had only been approved under the FDA’s Emergency Use Authorization authority as the basis for banning businesses and employers from imposing vaccine mandates.


While no state currently compels mandatory vaccine checks, cities like New York and San Francisco have vaccine verification systems for vaccine checks. The California experience could make a case for vaccine passports in the U.S given the significant increase in COVID vaccine uptake and decrease in COVID deaths following implementation.


When people refer to “vaccine passports” they are referring to turning proof of vaccination into some kind of electronic credential, typically via an app that is stored on a smartphone or other electronic devices. While no standard currently exists several tech companies like Clear and IBM have provided a convenient way for individual citizens to digitize their vaccination credentials through their apps.


Implications:


While requiring or even mandating digital health certificates or vaccine passports raises valid privacy and equity concerns by default broad-based usage could increase vaccine uptake. They could also be useful for building a public health infrastructure that allows for proactive tracking of the diseases and other potential public health emergencies. While the court battle over the legality of vaccines will likely not play out for some time, if businesses, employers, and government bodies require them for various forms of access while allowing a non-vaccine alternative like testing, the ease of use and convenience is likely to increase the popularity of these digital authorization methods at least at the margin.


In addition, if the government and private businesses look to proactively and transparently address privacy and equity concerns by establishing standard guidelines for the collection, processing, and sharing of collected data, additional resistance can be overcome. For this to succeed, it is equally important that mechanisms are developed to ensure that the certifications are shown to be unbiased, reliable, and accurate. Along these lines, with proper support from concerned parties, one could envision something like a public-private partnership that seeks to broaden access to the vaccine and even devices to show evidence of a passport to underserved groups. Given the Coronavirus and its variants are likely to be with us for the foreseeable future, businesses, employers and other large organizations will look to protect their members and give them the greatest sense of protection and security.


This is particularly true for those catering to customers in an older demographic for as noted in a recent New York Magazine article, “your chances of dying from a confirmed case [of COVID] roughly double with every five to eight years of age”. Moreover, some organizations will likely look to protect as many of their stakeholders and customers by requiring the unvaccinated to observe disease precautions such as social distancing and/or smaller gathering sizes (such as when restaurants limit dining party sizes). Here too, ease of access and the desire of individuals to return to pre-COVID norms are likely to increase vaccination rates. In such situations, businesses such as restaurants, bars, sports, and entertainment venues have a legitimate economic interest in maximizing capacity and are likely to allocate greater space to vaccinated patrons (a position we view as likely to be held up so long as it acts with some balance and doesn’t discriminate). The new wave of COVID cases has impacted mostly the unvaccinated so the market focus will likely demonstrate that a vaccine passport could provide the needed nudge to keep more people safe in the interest of public health.


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