Ethics and Law of Requiring Proof of Immunity to Access Public Places
Notre Dame, Rutgers, Duke, and Brown are among the higher education institutions that will require students demonstrate they have been immunized against Covid-19. Meanwhile, while New York has implemented a “Vaccine Passport” program, the Governors of Texas and Florida have passed executive orders banning various entities from doing so.
What are “Vaccine Passports” or “Vaccine Certificates”? Can or should universities or businesses require proof of vaccination before allowing access? Should government be issuing such requirements, or barring them?
This piece from National Public Radio offers a good overview of “vaccine passports.”
As leading bioethicist and Biden Covid-19 transition team advisory board member Dr. Ezekiel Emanuel indicates, what we are talking about is a certification that you have taken proven steps to reduce your chance of catching, spreading, and getting severely ill from the virus. As Emanuel states, these systems “can be a way of lifting the substantial restrictions that are currently in place due to COVID-19.
“In public health, there’s a principle that you should use the least restrictive method necessary,” he explains. “This [credential] allows us to say: ‘Those people who’ve gotten vaccinated, you don’t have to adhere to certain restrictions because you are now immune. You’re not likely to pass or transmit the virus.’ ”
In Digital Health Passes in the Age of COVID-19: Are “Vaccine Passports” Lawful and Ethical? public health lawyer Larry Gostin, health lawyer and ethicist Glenn Cohen, and infectious disease physician Dr. Jana Shaw, come to similar conclusions to many legal and ethical experts by finding that, while there are technological and scientific challenges with implementing these passes, they likely are consistent with past steps states and businesses have been allowed to take to protect against the spread of infectious diseases, and are therefore likely legal for both public and private sector entities to implement under international law, federal law (including HIPAA), employment law, and state law (unless the state takes explicit measures, as Texas and Florida has). This is especially true as the Covid-19 vaccines have been found to reduce the spread of the virus (a population health measure) as well as the effects of catching it (more of an individual medical benefit).
On the other hand, this does not eliminate certain ethical and political concerns about implementing such programs. Dr. Georges Benjamin, the American Public Health Association Executive Director worries attempts to implement such systems could backfire, stating, “Getting compliance is going to be hard, and I think it leads to politicization.” At the same time, with significant disparities in access to vaccination both domestically and globally, such programs have been criticized as reinforcing divides between haves and have nots that preceded the pandemic. Any steps toward implementation of such systems should be matched by strong efforts to ensure equitable access to vaccination, whether that means across neighborhoods in a city, state, or across nations around the globe.
