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As of early June 2021, approximately forty (40%) percent of the U.S. population is fully vaccinated and fifty (50%) percent received their first dose. State governors, the general population, business owners, employees, and employers, consider the next debate – proof of immunization, and the viability and issues surrounding whether to require a vaccine passport. The vaccine passport debate is not easily resolved for many reasons, but in part, because it is inconsistent with the Federal Drug Administration (“FDA”) statute which provides that vaccine administration is optional. 21 U.S.C. 360bbb-3(e)(1)(A)(ii)(lll). The majority of the U.S. population have not received a full dose yet. Of those that have received their first dose, many have missed their second dose. The vaccine itself is regarded with some skepticism, and its distribution is uneven, with under-served communities and/or the less wealthy more likely to face reduced accessibility to vaccination sites.
Since the vaccine is voluntary, all eyes are now on state governments as to how they will choose to reconcile that the vaccine is optional with the concerns of private businesses, who want to require a vaccine passport to protect their employees and to protect themselves from potential liability claims and the establishment of protocols when there are valid medical/health reasons that prevent an individual from receiving a vaccine. Currently, private businesses, unlike public, can deny access based on vaccination status, with a few exceptions, and as long as they do not discriminate. The reaction to the vaccine passport is analogous to the reaction of COVID-19. Some states imposed minimal restrictions, while other states did not impose many restrictions at all, leaving the implementation for enforcing social distancing by prohibiting access to goods and services, to the towns and city’s local mayors and/or the whim of private businesses. Other states, including New York, imposed strict restrictions mandating masks, and imposed travel restrictions and quarantines.
Reactions to the vaccine passport will likely result in the same patchwork of Executive Orders and enactment of other rules and laws by each individual state, and/or locality, as the reaction to COVID, which resulted in a medley of different social distancing protocols. Yet, uniformity in either prohibiting or requiring a vaccine passport also presents its own set of problems. So, with that said, let’s launch into the reactions to the vaccination roll-out and reopening with the vaccine passport a topic of debate.
Vaccine passports are particularly unpopular in some states. Strong views for the bans against the passports are already apparent in response to the vaccination rollout and reopening in several states. Some states have promulgated orders that bar the use or requirement of vaccine passports by government, state and local, agencies and public institutions. In other states, the prohibition against vaccine passports extends to private businesses by connecting the prohibition with the ability to continue to receive government subsidization, funding and contracts. Other states have also prohibited the exchange of information to create passports, as a means to impact their use by private businesses. Below is a summary of a few.
Alaska’s Administrative Order No. 321, dated April 26, 2021, bans any requirement of a person’s personal vaccine history, referred to as a “Vaccine Passport” to travel to, or around Alaska. The Order is limited to entry and destinations within Alaska, but does not apply to private businesses.
Arizona’s EO 2021-09, signed on April 19, 2021, bans the use of vaccine passports by state and local governments entities, and subdivisions, for entry and as a condition for receipt of services, permits and licenses, and contracts, but the ban does not apply to private businesses with the exception of those receiving state funding, healthcare institutions, and during a COVID-19 breakout investigation.
District of Columbia’s Mayor’s Order 2021-065 dated April 30, 2021, perhaps needs clarity in some respects. Businesses and other institutions, other than judicial, legislative, and federal government employers, can request proof of vaccination to verify whether a person needs to wear a mask, but if a business requires proof, it must provide exceptions for individuals that are medically unable to receive a vaccination and accommodations for individuals with sincerely held religious beliefs which forbid vaccination. District government agencies may issue rules to provide for the revocation, suspension or limitation of licenses, permits, certificates, endorsements and other authorizations for violation of the Order. How businesses will be able to make a determination for such exceptions is not clear.
Florida Governor’s Executive Order (EO) No. 21-81, filed by the Department of State on April 2, 2021, is directed to businesses and does not seek to distinguish them. Under the EO, businesses are prohibited from requiring proof of any vaccine documentation, and federal government entities and agencies are prohibited from issuing vaccine passports, vaccine passes and other standardized documentation for purposes of being used to certify an individual’s vaccination status to a third party. To incentivize enforcement short of infringement on the rights of private businesses, the EO provides that all businesses must comply with the order to be eligible for grants or contracts funded through state revenue as a means to encompass private businesses within its scope.
The Idaho Executive Order (EO) 2021-04, dated April 7, 2021, prohibits a department, agency, board, commission or other executive branch entity or official from requiring that an individual produce vaccination proof to access services and facilities, and from producing and issuing any vaccine passport for purposes of certifying vaccination status, or providing information to any person, company or government entity for inclusion in a vaccine passport program.
Montana Executive Order Prohibiting Vaccine Passports, No. 7-2021, prohibits business from requiring patrons to provide vaccination proof to gain access to, entry or services, and prohibits COVID screening, with exceptions for nursing homes, long term care and assisted living facilities.
New York has no Executive Order banning vaccine passports. Instead, New York created a digital platform called Excelsior Pass to assist in sharing COVID vaccination status and screening results. Excelsior Pass is entirely voluntary for New Yorkers, but encourages the use of vaccine passports leaving it open as to whether the use of vaccine passports, or digitalized passes, such as Excelsior Pass, by businesses to impose a requirement for entry and access to services from large venues to small, will become the new norm. Other states that are considering passport programs include North Carolina and Hawaii.
South Dakota’s Executive Order (EO) 2021-08, dated April 20, 2021, bans state and local government entities, and subdivisions from requiring any individual to provide a vaccine passport or other proof, in order to enter, receive government benefits, or a license, and prevents requiring any private business to mandate vaccine passports to do business with the aforementioned.
Texas’s Executive Order GA-35, dated April 5, 2021, bans governments from mandating vaccination, vaccine passports and proof and applies to state agencies and political subdivisions. It also expands to prohibit public and private entities who receive public funding, in whole or part, whether by grant, loan, contract or other disbursement, to require that consumers provide proof of vaccination for entry or access to services, except for residents of nursing homes, long term care and assisted living facilities.
Utah’s legislation entitled The COVID-19 Vaccination Restrictions Act, H.B. 308, signed in March 2021, prohibits state governments, including state colleges and universities, and other public institutions, from requiring vaccination for access to facilities and services and for employment, except in health and medical settings and in settings involving the distribution and administration of COVID vaccination.
All of the states declared certain objectives and core values for instituting their bans. While Alaska connects the prohibition against vaccine passports to the impact on tourism and the economy, the motivations behind Florida’s prohibition are broader. Florida seeks to protect patient privacy for residents who are unable or cannot obtain the vaccination due to health or religious reasons, and the underserved and under-represented. Idaho expressed consternation about states exploring the creation of COVID vaccine passports and took aim at New York as “promoting a software program that will facilitate the exclusion of Americans who have not received COVD-19 vaccine from receiving services and fully participating in public life.” Montana’s objectives are geared to individual freedoms, similar to Utah’s. Arizona’s reason is that the transmission rate of COVID does not fall within the scope of a state statute that mandates vaccines in narrow circumstances. Texas expressed concern over disclosure of private health information. South Dakota’s core objectives emphasized that vaccine passport programs could lead to unjustified non-science-based restrictions impinging on civil rights, citing a report in a medical journal about the disproportionately lower rates of vaccination amongst low income populations and that vaccine passports will confer social privilege and lead to discrimination. Not all localities agree and are taking the opposite approach. Recently, by Order of the Health Officer of the County of Santa Clara, effective May 19, 2021, the first such law in the nation if now the world, employers in private businesses and government entities, are required to determine if employees are vaccinated and to maintain records, or be subject to fines and even imprisonment or both, under the California Health & Safety Code and California Penal Code.
The vaccine passport debate comes at an opportune time now that many states are requiring employers undertake measures consistent with OSHA, to protect their employees and institute preventative measures in the workplace to prevent the spread of COVID. There may be barriers ahead for those seeking work or are employed already but are unvaccinated due to their health status or religious beliefs. Although an employer will still be subject to state and federal employment laws and other federal statutes that provide protections to employees and for those with disabilities, such as the ADA and Title VII, an employer’s decision to require mandatory vaccination adds a further wrinkle.
So as the U.S. continues to reopen, it is important that you stay up to date with your individual state’s laws or guidelines regarding vaccine passports. While many states are only discussing or moving toward a voluntary implementation of vaccine passports, other states have banned them outright.
Carol A. Crossett is a Partner in the New York City office of Tully Rinckey PLLC and heads the Commercial Law Group. She concentrates her practice on corporate and commercial litigation and transactions. Carol also possesses extensive experience handling business succession planning and trusts and estates matters. She can be reached at firstname.lastname@example.org or at (646) 201-9100.