Are Covid Vaccine Passports Next?

I was going to open this Fontenotes saying that “Vaccine Passports” and “Vaccine Mandates” are concepts that overlap and are easy to confuse– then I did it myself in Fontenotes No. 109 (and had to send a correction for my Texas readers).

To be fair, the terms are often used interchangeably in the press, so maybe it is grammatically correct. But they really are two different things, and it would help if we all keep the labels separate:

  • “Vaccine Mandates”: when your employer says you must get vaccinated (presumably to keep your job)
  • “Vaccine Passports”: when you must show proof of vaccination before you are allowed into a restaurant, a concert, or a country. Denying you access to an activity or place because you aren’t vaccinated.

Employer mandates are sweeping the country, but the Covid Delta variant is far more prevalent. Will passports be the next initiative to curb the rising tide of disease?

Where Mandates and Passports Intersect

If an employer requires employees to get a Covid vaccine (or undergo frequent testing, see New York City as an example), there must be a selection process when staff present their vaccine documentation (or not). Failure to comply should result in consequences- up to and including termination of employment- for the mandate to be meaningful. In that sense, I guess a mandate becomes a passport.

This overlap provides an opportunity to give a quick update: Since I published on July 29th, President Biden announced a mandate for all federal employeesDisney & Walmart issued mandates on July 31stMicrosoft and Google came on board August 3rd, and Tyson Foods (120,000 employees) announced a mandate on August 3rd, which is essential in the hard-hit food processing industry.

Hospitals across the country are following the recommendation of the American Hospital Association to impose a mandate for health care workers, even in Florida. On Monday, Kaiser Permanente said it will require its more than 216,000 employees and 23,000 Permanente Medical Group physicians to be fully vaccinated by Sept. 30; Ascension Health told its 160,000 associates that it will require complete vaccination by Nov. 12; 57 other health care systems added their recent mandates to the August 2nd announcement.

In perhaps the most ironic development (given ongoing anti-mandate programming), the Fox Corporation, home of Fox News, now requires employees to provide information regarding their vaccinated status to bypass the “otherwise required daily health screening.” Internally, the mandate is called the “Fox Clear Pass.” [Source]

Mandates are undoubtedly one of the reasons the national vaccination rate continues to climb. As I write, the United States reached the 70% of Americans vaccinated goal President Biden hoped to celebrate on July 4th.

The rate of vaccinations, however, remains insufficient to counterbalance the Delta variant: “the fastest, fittest and most formidable version of the coronavirus.” [quote]

With a third of Americans not fully vaccinated (for many personal reasons), and according to Gallup, 78% of the unvaccinated unlikely to reconsider their decision, will Covid Vaccine passports be next?

Why “Passports?”

The argument for passports is that when people cannot travel, go to concerts, attend sporting events in person, or even dine in their neighborhood restaurant, the burden of their unvaccinated status might become an untenable restriction in their lives. It could be the final straw that gets them to pull up their sleeve.

Setting aside (for now) the crucial concern that some people remain unvaccinated because of access issues, medical reasons, or they simply can’t afford the risk of losing a few days to get through possible vaccine reactions (see Want to Know More, below), are “passports” even legal?

That probably depends on who is standing at the door checking your card.

Will the Federal Government Issue a Covid Passport?

Fears about President Biden pursuing a National Covid Passport may spring from misunderstandings about the “White-House led” industry cooperation to create uniform apps that allow people to show their vaccination status as businesses strive to reopen.  However, the government’s involvement, according to the White House Coronavirus Coordinator Jeff Zients, is to ensure these fledgling passports protect a variety of interests, including people’s privacy rights under federal law.

“Our role is to help ensure that any solutions in this area should be simple, free, open source, accessible to people both digitally and on paper, and designed from the start to protect people’s privacy” [quote]

The White House has clarified it isn’t undertaking a passport initiative (watch Press Secretary Jen Psaki’s press briefing on April 6th), or as reported in England by the BBC:  “The US said it did not and would not support a ‘system that requires Americans to carry a credential.’”

You don’t have to trust any assurances from Washington, however, because the courts would likely strike down a federally-imposed, national Covid passport in the immediate and inevitable legal challenges that would arise.

Even if the Biden Administration wanted to change their stance on a national passport, that doesn’t mean they can.

When Joe Biden was a candidate espousing a federal mask mandate, what he meant was he hoped every Governor would order masking in their respective states. If he can’t require us to wear a mask, he can’t dictate what we carry in our pockets.

The reason for this limitation on Presidential powers is the delegation of Police Powers and state sovereignty, as required by our Constitution and Tenth Amendment. (For an explanation, see Fontenotes #91) Health care is undeniably within each state’s power to control, and under our system of federalism, a President can’t force state governments to change their health laws or policies. States are sovereign entities, not lower layers of government. (Go here for an excellent discussion on federalism and Presidential powers.)

Speaking of national mandates, if you want to see how successfully other countries are implementing requirements to carry proof of vaccination to participate in daily activities, look no farther than the riots in France since President Macron imposed such an order on July 12thcomparable orders are behind similar protests in Italy and Germany.

The specter of “carrying papers” will not fare better in our country, especially if ordered by Washington. I personally discount any predictions that this is the direction we are headed.

Could Individual States Issue Covid Passports?

For the same reasons that the President can’t mandate a national Passport, states can. (To understand why see Fontenotes #91)

We have already seen this with New York’s Excelsior Pass, “a voluntary and secure way to retrieve proof of COVID-19 vaccination or negative test results [so that] participating businesses and venues can scan and validate your pass to ensure you meet any COVID-19 vaccination or testing requirements for entry.”  [Source]

The Excelsior Pass will see a lot of use in New York City, now that Broadway theaters announced all audience members will have to show proof of vaccination before entering. Far more important to most people living or visiting NYC, the city just announced proof of vaccination will be required for all indoor dining in the cityas well as working out at a gym or seeing a movie. In making the announcement, Mayor de Blasio made the implications of a vaccine passport very clear:

“[New York City] is a miraculous place literally full of wonders… If you’re vaccinated, all that’s going to open up to you. But if you’re unvaccinated, unfortunately you will not be able to participate in many things.” [quote]

New York, however, is an exception.

States are far more likely to prohibit Covid Passports within their borders.

Governor DeSantis did that on April 2nd in Florida (banning “vaccine passports, vaccine passes or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccination status to a third party” ), Governor Abbot in Texas by Executive Order on April 6thAlabamaArizona, and Arkansas have followed suit- and that just gets me through the “A” states! (Go here to see the status of your state as of June 1st).

Can a Private Business Require Proof of Vaccine?

This is where the possibility of Covid passports becomes most likely- and compelling.

If I own and operate a movie theater, can I require customers to prove their vaccine status before buying a ticket?

Keeping in mind that there will always be state law to consider, what intrigues me is the U.S. Supreme Court Masterpiece Cakeshop decision (2018) and the traditional values of the Republican party.

I don’t want to overplay the legal precedent of the Masterpiece Cake opinion, which is heavily based on the conduct of the Colorado Civil Rights Commission. The Supreme Court 7-2 majority (only Justices Ginsburg & Sotomayor dissented) found the commission actions egregious enough to violate the Free Exercise Clause of the U.S. Constitution.  [Go here to read the opinion and get more information about the case.]

However, the case is well known to the public as the dispute between a private bakery owner and two men who attempted to order a cake for their same-sex wedding, which the baker won in the Supreme Court.

To many Americans, this case answers the question, “can a private businessperson use their personal values and beliefs as a justifiable reason to refuse service to a customer?”

Masterpiece Cake is touted as a case demonstrating “the current legal atmosphere of religious intolerance” in our country; in the conservative media, some met it as comfort to Christian business owners who primarily service the wedding industry – gay rights do not necessarily trump everyone else’s rights.” [Quote] Conservative religious publications also expressed support for the outcome of the case.

In addition to conservative support based on religious convictions, Masterpiece Cake has political implications.

President Trump’s Department of Justice filed a “friend of the Court” brief in support of the baker; Colorado Republican’s used the case to energize their base for upcoming state elections.

With the GOP’s traditional pro-business reputation and support, and arguably an increased need to demonstrate a commitment to private business in the current political environment, will conservatives turn against companies who want to control who sits at their tables or cheers for their team?

Federal anti-discrimination law, of course, denies the right of a business to refuse service to any customer if the refusal is prejudice against a person in a “protected class” (which on a national level includes many things such as race, color, national origin, sex, age, disability, and more; check your state law for additional protections.)

But otherwise? Federal law allows private businesses to refuse service to just about anyone if the reason is not discriminatory and is reasonable (think “No Shoes No Shirt No Service” signs in most restaurants.)

What will happen when a business files an (inevitable) suit in Texas (or Florida, or Arkansas, or South Dakota…) challenging the State “No Passport” Order? Will a Republican Governor refuse a private business the ability to choose its customers in an election year?

That is the question about passports that intrigues me the most.

Want to Know More?

1. It is my personal experience that many unvaccinated people are not opposed to the shot- they just can’t risk being unable to work for a few days if they have side effects immediately after they get the vaccine. I know an independent house painter, a rancher, a self-employed gardener, and a small store owner who all fall within this category.

If you have the ear of a politician, could you please suggest what many unvaccinated people need is a safety net to cover their lost income (and to hire a worker to replace them for a few days if necessary), not 100 bucks?

Many large employers aren’t mandating vaccines for their people staffing the floors of the stores or warehouses because they don’t want to lose entry-level employees when staffing is already tight. Want to keep your employees and build loyalty among your ranks? Cover their lost days if they get sick after their vaccine without docking their pay or requiring them to use precious sick days or vacation time. Oh. In the meantime? Make sure they have excellent health insurance benefits.

2. I call “FOUL” on anyone in Congress using HIPAA as an excuse to not answer the question “Have you been vaccinated?”

HIPAA did give us all four new federal rights (including the right to limit disclosures of health information), but those rights can be waived at any time for any reason. The whole point of HIPAA is to put you in control of your health information- so stop using it as if it was tying your hands when asked a question about your own health.

No one has to tell a reporter if they have been vaccinated or not; that is your right, but asking the question isn’t a “violation of your HIPAA rights.” Are you listening Rep. Marjorie Taylor Greene?