Passport Rejected — A New Twist in the COVID-19 Passport Chapter

Seyfarth Synopsis: Similar to mask mandates, COVID-19 passports—a means to prove one’s vaccination status—are becoming a political lightning rod in the United States. Where states like New York have viewed such passports as a viable tool for promoting safe in-person interactions, others, like Florida and Texas, have viewed them as an affront to privacy and individual liberties. For multi-state employers considering a passport solution, these developments command attention.

Despite entering a period of hope in the COVID-19 pandemic saga, the path leading back to normalcy remains a source of heated debate. Few topics highlight that better than the latest area of dispute: COVID vaccine passports.  

Indeed, a world that spent nearly a year waiting and hoping for a COVID-19 vaccine got its wish in the waning months of 2020. But with that development came questions. Among them: whether businesses or governments can or should require individuals who seek to enter their domain to prove their vaccination status—and if so, how?  

Governments and entrepreneurs around the world have responded with the concept of so-called “vaccine passports.” If you live in the United States and have recently been on Facebook, Instagram, or Twitter, you’ve likely seen selfies of friends posing with a paper card inscribed with the vaccine they received and when they received it. The tech community, as it often does when it sees lots of paper, has since set out to craft more elegant, technology-driven solutions. Debate lingers about the best medium and format for a passport solution.

Crafting a viable passport is only part of the equation, however. The question remains how the private and public sectors might work together to sanction and utilize passport technology in a way that meets the needs the passport intends to serve. Driven by concerns about individual rights and privacy, the answer in some U.S. jurisdictions is shaping up to be: they won’t. 

New York jumped in head first to develop and roll out a passport program—its Excelsior program is already available to the public. Other states like Hawaii are in the process of rolling out their own programs, while governors in other states, like New Jersey, Illinois, and Pennsylvania, have cautiously voiced support for the concept.

Meanwhile, a growing caucus of governors have taken steps to curb the use of COVID-19 passports in their respective states. The most extreme example is Florida, where Governor DeSantis’s executive order prohibits the use of COVID passports not just in the public sector, but in the private sector as well. That order could be on a crash course with some private businesses’ reopening plans, including, for example, members of the cruise line industry planning to require proof of vaccination for all passengers and crew.

Employers considering requiring employees, customers, or other individuals to provide vaccination proof as part of a reopening plan will need to monitor these developments. If nothing else, the splintering of states will make it difficult to institute a universal policy that applies throughout the United States. 

The following is an overview of where the opposition to vaccination passports stands at the state level. We expect additional states to enter the fray in the coming weeks.

• Idaho. On April 7, 2021, Gov. Brad Little signed an executive order to ban the state from mandating or issuing COVID passports, citing concerns that passports would “violate Idahoans’ medical privacy rights, prejudice those unable to receive the vaccine, slow our economic recovery, cause division … , and, ultimately, be counterproductive to the widespread administration of the COVID-19 vaccines … ” The order bars government entities from creating or issuing a passport, providing proof of an individual’s vaccination status to any other person, or requiring proof of COVID vaccination to receive public services.
• Texas. On April 6, 2021, Gov. Greg Abbott signed a similar executive order, noting that receiving a COVID vaccine “is always voluntary in Texas” and that “vaccination status is private health information” for which “no governmental entity should compel disclosure … ” The order bans state agencies, as well as any recipient of public funding, from requiring any individual to provide proof of vaccination as a condition of receiving any service or entering any place. The order allows, however, nursing homes, state-supported living centers, assisted living facilities, and long-term care facilities to require proof of a resident’s vaccine status.
• Florida. On April 2, 2021, Gov. Ron DeSantis signed an even broader executive order, citing similar concerns to those noted above, as well as his view that requiring vaccination proof to “tak[e] part in everyday life—such as attending a sporting event, patronizing a restaurant, or going to a movie theater—would create two classes of citizens based on vaccination.” Not only does the order prohibit government entities from issuing passports, it prohibits private businesses in Florida from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination … to gain access to, entry upon, or service from the business.”
• Utah. In February 2021, Gov. Spencer Cox signed a new law that bans state government entities from, among other things, requiring an individual to receive a vaccine as a condition of employment or to attend events hosted by the entity. The order does not apply, however, to government employees in a public health or medical setting or who are required to receive a vaccine in order to perform their assigned duties. 
• Missouri. Missouri lawmakers are proposing prohibiting vaccine passports. The state senate gave final approval last week to a proposed bill that would prohibit transportation systems from requiring documentation of vaccine status, including air travel, buses, taxicabs or any other public transportation or “prearranged rides.”
• Georgia, Iowa, Nebraska, and Tennessee. While the governors of these four states have not (yet) issued orders on the topic, each has expressed opposition to COVID vaccination passports.

At the federal level, the Biden Administration has indicated that it does not intend to implement a COVID passport, nor will it create a vaccinations database. Notwithstanding that announcement, Rep. Andy Biggs (AZ) recently introduced federal legislation to preemptively ban federal agencies from creating a vaccination passport.

Where COVID passports will go in the weeks and months to come remains to be seen. In some parts of the world, from New York to Israel, they are already being used. But they are also running into steep challenges in other jurisdictions. For employers assessing a vaccine passport program, this is yet another important and evolving layer of consideration.

For more information on COVID passports, you can see our earlier alerts (here, here, and here), which also focus on aspects outside the US. You can of course feel free to contact the authors or your favorite Seyfarth Shaw attorney to discuss further.