Tag: vaccine passports

Canada Announces Removal of COVID-19 Border Entry Requirements

The Government of Canada announced, on Monday, September 26, 2022, that after Friday, September 30, 2022, all requirements related to COVID-19 for entering Canada will expire. These include:

  • Providing proof of vaccination and other health information;
  • Mandatory usage of the ArriveCAN application;
  • Pre- or on-arrival testing and/or screening requirements;
  • Random testing at airports;
  • Monitoring and reporting if one develops COVID-19 symptoms;
  • Quarantine and isolation requirements.

As a result, as of September 30, 2022, persons entering Canada would still be required to follow local public health guidelines, where applicable. The removal of measures applies to all forms of travel, including by air, land (including rail), and sea, whether internationally bound or domestic.

Many of these requirements have been in place since early 2020, during the onset of the pandemic. Employers with employees traveling into Canada can be assured that such measures related to COVID-19 will no longer apply as of October 1, 2022. It is important to note that the Government of Canada did leave open the possibility of re-imposing measures if the situation regarding COVID-19 is seen as requiring it.

For more Coronavirus News, click here to visit the National Law Review.

© 2022, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

The Ongoing US Vaccine Passport Debate

One main principle among public health measures is to use the least restrictive method necessary to protect the population, or to do the greatest good. From the public health perspective, requiring COVID status credentials (“Credentials”) makes sense because it allows people who present a low risk to others to not be subject to unnecessary restrictions. However, implementation and use of Credentials will require careful consideration of individual privacy concerns, as well as the ethical questions related to access and additional privilege.

In late March, the Biden administration announced that vaccination credentials or “passports” would not be mandated at the federal level and that there would be no centralized universal federal vaccinations database. Instead, the federal government’s role will be to develop standards for such solutions so they are designed to protect people’s privacy and are “simple, free, open source, and accessible both digitally and on paper,” according to White House coronavirus coordinator Jeff Zients.

To date, federal standards for the interoperability, security, or privacy of Credentials have not been published. Despite this fact, smartphone apps are already popping up that allow individuals to upload their COVID-19 test results and vaccinations that create a digital QR code, which can be scanned to validate a person’s COVID status.  A few companies are also developing a “smart card” option that does not require a smart phone.

Despite the lack of federal standards, these digital Credential solutions are already being implemented by health care providers administering the vaccine and others who are looking to meet “reopening” requirements. Reason being, while federal and state governments are not willing to require vaccination, proof of COVID status will otherwise be required in order for people to enter certain places. For example, in California the rules for reopening indoor live events require proof of vaccination or a negative test result from individuals before they are allowed to enter the venue. In New York, some state employees reportedly are required to use the state’s Credential solution, the Excelsior Pass, when returning to work.

While Credentials make sense from a public health perspective, concerns remain. Politicians in multiple states have proposed anti-passport legislation, citing privacy and civil liberty violations created by public and private entities requiring proof of vaccination.

One concern is the lack of comprehensive federal legislation that would protect the information that could be collected from individuals in connection with digital Credentials. While health care providers, health plans, and their contracted technology providers are generally subject to the Health Insurance Portability and Accountability Act (HIPAA) and its implementing regulations – which impose certain security requirements and limit how health information may be used without a patient’s consent – HIPAA may not always apply to the data involved. For example, a patient could authorize their health care provider to disclose their test results and/or vaccine record to the Credentials vendor, who would then generate and maintain the passport credentials. The customer in this case is the patient, not a health care provider or health plan, which means that HIPAA would not apply.

While it seems like HIPAA applicability is a minor distinction, the privacy and security implications can be significant. Under HIPAA, patients may share their health information however they choose, and health care providers and plans are required to send records to third parties upon a patient’s request. The sending of such records does not, in itself, make the third party recipient subject to HIPAA.  Digital Credential vendors and the public and private entities verifying testing/vaccination status thus may bypass HIPAA’s privacy and security requirements.

Businesses who collect COVID status and other consumer information may still be regulated by the Federal Trade Commission (FTC). However, generally speaking, fewer privacy protections apply in this kind of situation, and the applicable security standards are less specific. At the state level, digital Credential vendors may be subject to laws that are similar to, or even more stringent than, HIPAA, but this is not always the case.

As a result, the door is potentially left open for companies to collect substantial amounts of electronic health and other data without the privacy and security protections that exist in a traditional health care environment. Due to the potential value of the data and the fact that the Credentials will be offered for free, some skeptics believe companies will want to monetize the data collected to the fullest extent possible. Additionally, the potential for government agencies to collect data using Credentials and utilize it for other purposes beyond public health (e.g. monitoring and law enforcement) is a legitimate concern.  If either of these things happen, there will still be a “cost” to people in using these Credentials, and in the absence of a reasonable alternative people may have little choice but to pay it.

The use of Credentials raises ethical concerns as well. Ultimately, Credentials should be available and accessible by all, via a variety of mechanisms. In practice, the use of Credentials raises the question of equal access and the further divide that could be created in society.  Reports indicate that vaccine availability still varies greatly among communities, and that the rate of vaccination among racial minorities and low-income populations remains low. As a result, requiring or allowing use of a Credential becomes a privilege for those who have been vaccinated, which could lead to significant bias toward anyone without a Credential. Implementation and use of Credentials also needs to account for the subset of the population who are unable to receive a vaccine for medical reasons and those who may object to a vaccine based on religious or philosophical beliefs. Without some form of accounting in the implementation of Credentials, these groups may be unnecessarily penalized.

For the moment, individual users of digital Credentials are trusting the recipients of their data. Private and public entities are left to make tough decisions about the development and use of Credentials from a legal and ethical perspective while trying to anticipate the guidelines that might be articulated by the Biden administration.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

ARTICLE BY Lara D. Compton and Bridgette A. Keller of Mintz
For more articles on vaccine passports, visit the NLR Coronavirus News section.

Goodbye COVID-19 Priority Phases and Tiers, Hello Battles With Vaccine Passports!

On Tuesday, April 6, 2021, while touring a vaccination site in Alexandria, Virginia, President Joe Biden imposed a deadline on every state to open up vaccination eligibility to all adults by April 19, 2021 (moving up the previous target date of May 1, 2021). The White House COVID-19 coordinator, Jeffrey Zients, told governors also on April 6, 2021, that more than 28 million doses of vaccines will be delivered to all of the states the week of April 4-12, 2021. The president’s directive matches Dr. Anthony Fauci’s estimate in November 2020 that the earliest a vaccine would be available for most nonprioritized Americans would be April 2021.

While it is unclear whether or how that deadline could be enforced—and vaccination eligibility and scheduling does not mean that shots will actually get into people’s arms by, or on, the end of April (that will take several more weeks for sure)—it appears that the country is on the verge of opening up the floodgates regarding vaccine availability.

More than a dozen states have already completely opened up eligibility to anyone 16 years old and older. Now that there are vaccines available from three pharmaceutical companies, and the first few priority phases and tiers have been exhausted in most states, it seems that anyone willing to get the vaccine will be able to do so in very short order. Of course, polls show that approximately 13 percent of individuals say they will “definitely not” get vaccinated and another 25 percent say they will either “wait and see” or get vaccinated “only if required.” This may help explain why supply has met (or quickly will meet and exceed) the current demand for the vaccine.

Texas is one of the states opening up eligibility to everyone over the age of 16, but Governor Greg Abbott on April 6, 2021, signed an executive order prohibiting governmental entities (and those private businesses receiving public funds) from requiring proof of vaccination for purposes of receiving any service or entering any place—whether through the use of “vaccine passports” or otherwise. According to the governor, he issued these prohibitions and protections in Texas because each person has “the option to accept or refuse administration of the product” under an emergency use authorization (like all three of the currently available vaccines) and vaccination “is always voluntary in Texas and will never be mandated by the government.” This executive order also classifies mere “vaccination status” as “private health information,” although the federal government has explained that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act.  Florida Governor Ron Desantis issued a similar Executive Order on April 2, 2021, but it prohibits all “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.”  While the Executive Order does not reference “employers” or “employees,” it is not clear yet how broadly the prohibitions will be interpreted.

Considerations for Tweaking Vaccination and “Return to Office” Policies

Even if an employer may legally require full vaccination before employees return to its offices or facilities, requiring employees to choose between a vaccine and all previously existing aspects of their jobs could still breed resentment, and risk legal action. But there is a good business case to be made for requiring full vaccination of all employees working at a worksite with other employees. The U.S. Centers for Disease Control and Prevention (CDC) recently provided guidance—Interim Public Health Recommendations for Fully Vaccinated People—and explained that fully vaccinated people need not wear masks or observe social distancing during private indoor visits with a small group of other fully vaccinated individuals (although even fully vaccinated individuals should “[a]void medium- and large-sized in-person gatherings” and continue to practice other preventative measures “in public settings”). The CDC guidance does not specifically address how to manage fully vaccinated employees in the workplace, and for the time being, existing state and local regulations regarding face coverings and other mitigation measures may still apply.

Given the above-referenced statistics and relatively high percentage of those who will oppose vaccination or receive it only begrudgingly, employers may want to consider alternatives such as continuing to allow remote working arrangements or allowing unvaccinated employees to return to their worksites under continued health and safety protocols, such as strict social distancing, masking, and quarantining.

However, other employers cannot (or may prefer not to) allow remote working arrangements indefinitely. For those employers, slowly phasing in a mandatory vaccination requirement may make sense, but such employers may also want to keep in mind reasonable accommodation requests from employees based on sincerely held religious beliefs or covered disabilities. Potential accommodations include granting exemptions from the vaccination requirement, waiting for alternative vaccine products without objectionable ingredients, or requiring additional mitigation measures, such as increased social distancing, continued use of face coverings, or reassignment to a different position or area of the workplace. Reviewing accommodation requests and engaging in the interactive process is a fact-intensive process, which often require careful consideration.

If a workplace is only open for those who have been vaccinated, knowing who is vaccinated is easy—everyone is! But, for those workplaces that allow both vaccinated and unvaccinated employees to return to their worksites, how do employees know who among them has been vaccinated—color-coded name badges, stickers, or other accessories? Will coworkers care if those working closely around them all day long have been vaccinated? How should employers track vaccination status, and can they? Currently, other than the Texas governor’s executive order, nothing prohibits employers from requiring proof of vaccination and (confidentially) keeping records of such vaccinations (e.g., seeing and maintaining a copy of employees’ CDC COVID-19 vaccination record cards). However, labeling (or branding) employees as either vaccinated or unvaccinated might lead to shaming, bullying, or harassment in the workplace if not properly implemented, monitored, and controlled.

The debate continues regarding whether “vaccination passports” or other types of identification should be used to distinguish between those who have been vaccinated and those who have not. Many restaurants, bars, concert venues, fitness centers, movie theaters, theme parks, and other businesses and organizations have said they will likely start requiring proof of vaccination (or proof of the need for an accommodation) in order for people to enter their facilities and enjoy their food, products, entertainment, and services. And, currently, most employers can start doing the same (subject to prohibitions that exist in Texas, Florida, and other states that follow suit).

Current Considerations for Employers

Employers may want to continue to communicate with employees (and continuously update them) regarding the organization’s position on vaccination, remote working arrangements, and safety protocols.

Employers may want to take this opportunity to implement a voluntary vaccination policy or convert a currently voluntary policy into a mandatory policy (whether for all employees or for those subsets of employees who are allowed or required to return to work in-person). And, if the ability to return to work in-person is not sufficient to reach a desired level of vaccinations in their workforces, employers might want to consider providing further incentives to vaccinate, such as monetary bonuses, gift cards, extra paid time off, or other rewards, if they have not already. However, a vaccination requirement for returning to an office or facility might incentivize employees to refuse vaccinations (or not tell their employers that they have been vaccinated) in order to continue their remote working arrangments—thus, ironically, creating a disincentive for getting vaccinated.

Either way, employers no longer have to worry about figuring out which employees might qualify for vaccinations under all the vague, confusing, and conflicting phases and tiers initially set up by the CDC and implemented with various tweaks by each of the states. And that is certainly great news and progress!

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.
ARTICLE BY James M. Paul of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
For more articles on vaccine passports, visit the NLR Coronavirus News section.