Now that the supply of vaccines in the US seems assured, the spotlight has turned to vaccine passports. Last week, New York became the first state to formally launch an app that can be used to confirm a person’s recent COVID-19 test result or provide proof of vaccination. While the federal government is helping to develop standards for vaccine credentialing, the White House has announced that there will be no centralized federal vaccinations database and expects that private companies will develop and offer vaccine passports or passes – and that it will be up to employers to decide whether or not to use them.
Vaccine passports are not new; they exist today and are often used for international travel. The potential upside of using COVID vaccine passports is to help “fast track” the country’s reopening and allow a safe return to ordinary life. A few major sports arenas have already announced that they will only allow fans to attend games with proof of vaccination and major cruise lines have started requiring travelers to show proof in the form of a physical card or a passport. However, there has already been a lot of pushback, with some arguing that requiring such documentation violates individual freedom or infringes on HIPAA protections.
For the hospitality industry and other consumer-facing organizations, vaccine passports seem like the simplest solution to an obvious need. But employers across many different industries are weighing the possibility of using passports for employees coming back to the office, meeting in person with clients, travelling for business, and so on. Certainly, implementing a vaccine passport policy would pose some privacy, operational, and even ethical risks for employers. The Biden administration plans to release guidelines for how the private sector might issue and use vaccine passports, but until then, here are some considerations:
Return to work Based on recent EEOC guidance, we know that employees can be required to show proof of vaccination before returning to work. However, even in the context of vaccine passports, employers must be prepared to accommodate situations where employees are unable to receive the vaccine for disability-related or religious reasons. If an employee refuses the vaccine due to disability, the employer is obligated to engage in the interactive process to determine the availability of reasonable accommodation without causing the business undue hardship. In regards to employees who refuse the vaccine based on sincerely held religious beliefs, note that the EEOC uses a very broad definition that generally includes moral or ethical beliefs. As for what constitutes a reasonable accommodation, employers generally are not required to make such major modifications to job duties that the position no longer fulfills its purpose. But employers need to be careful if they have allowed job modifications such as remote work over the last year and employees have remained productive. It would be risky to now require an employee requesting accommodation to prove vaccination status and return to the workplace, rather than allowing remote work to continue.
Job-required vaccine status The clearest case of needing proof of vaccination in order to perform certain job functions is for those required to travel internationally for their work. There may be a crossover period where demonstrating a person’s testing status may suffice, and there are apps that can store both types of information. In addition, employees whose jobs require them to go onsite at healthcare facilities or, potentially, schools, may need to be able to prove that they are vaccinated.
Unequal impact In deciding whether adopting a vaccine passport makes sense for your organization, it’s important to think through ethical considerations – namely, whether segments of a diverse workforce might be negatively impacted. Because of variances in vaccine distribution, segments of your populations may lag behind others in getting vaccinated and thus be affected to a greater degree when employers base rights and privileges on proof of vaccination.
Data privacy Employers also need to be aware of the privacy and security risks related to digital data storage, particularly where new technology is involved. What is not commonly understood, however, is that HIPAA protections would not extend to the information in a vaccine passport, as healthcare providers and group health plans would not be involved in disclosing it. Employers can manage other risks related to digital data storage by ensuring that any platform they ask employees to use has safeguards in place to maintain data security and integrity.
Vaccine status and quarantine management The CDC now says that a fully vaccinated person who is a contact to someone with known disease no longer needs to be quarantined or tested. This is important to employers in terms of cost, productivity and workforce management, and some are asking their people to provide proof of vaccination in the course of contact tracing. This raises the question of how to keep this information secure while being able to demonstrate that the correct steps have been taken to mitigate risk to others in the workplace.
It is early days yet for vaccine passports, and it is not clear yet what role they will ultimately play in the endgame of the pandemic. Given how politicized the vaccines already are, vaccine passports could create further divisiveness -- and if the troubled roll-out of New York’s Excelsior Pass is an indication, the technical challenges may be significant. Some may feel paper vaccination cards can be just as effective to show needed proof, but we anticipate that digital solutions ultimately will be the norm in a tech-fueled world. As we have seen time and again this past year, situations evolve very quickly in the pandemic era, and employers should think through the issues now and be ready to move swiftly should the right app appear.
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