On May 5, 2021, Seyfarth Shaw hosted a webinar entitled Passport to Normalcy: The Opportunities and Risks for Businesses in COVID Passports.
Speakers included: Andrea Serra, Project Lead with the World Economic Forum's Mobility team, Marc Freedman, Vice President of Employment Policy with the Chamber of Commerce, Loren Gesinsky, Labor & Employment Partner with Seyfarth Shaw and Julia Gorham, International Partner with Seyfarth Shaw. The panel was moderated by Anne Dana, a Labor & Employment Partner with Seyfarth Shaw.
The panel discussed key topics related to vaccination documentation, or what has been popularly dubbed "COVID passports" or "COVID health passes" The topics included: what are COVID health passes and who is issuing them, why these passes are such a hotly debated topic, data privacy and technology concerns, and equality and accommodation issues. The discussion also included considerations employers should keep in mind, particularly as we see business capacity returning to 'normal' (at least here in the United States) and travel resuming.
- The Basics
The panel first addressed some of the basics of COVID health passes: what are they, who issues them, and where will they likely be used?
Currently, one of the biggest debates is exactly what form such a document will take and what information will be included. At a high level—a COVID "passport" is an electronic or physical record of an individual's health and / or immunity status which may include COVID-19 vaccine status, COVID test results, medical exemptions due to underling illness / disability, and/or antibody and/or immunity status. Some of these proposed forms also track movement and potential COVID exposure via enhanced check-in and track-and-trace mechanisms (which is particularly prevalent in Asia.
They also discussed the debate about how to properly refer to such documentation, particularly in light of the negative connotations that the term "passport" has. For the reasons discussed in the webinar, organizations such as the World Economic Forum have opted to refer to these documents more broadly as digital health credentials, digital health certificates, or digital health passes.
Also addressed was how these proposed COVID health passes are different than the World Health Organization's ("WHO") International Certificate of Vaccination, or the "Yellow Card," namely: the format they will take, the type of information included, and the purposes for which they will be used.
Finally, the current examples of COVID health passes that are in development were highlighted, which include: country/national approaches, regional approaches, and private, non-profit or industry-association solutions — as well as the World Economic Forum's efforts on an initiative to develop a framework for COVID-19 health status verification.
- Why So Much Concern?
Next, the panel turned to discussing some of the reasons why COVID health passes have created so much debate. These range from arguments about personal autonomy and privacy, as well as concerns about the safety of the vaccines. They discussed how this debate is highlighted in the emerging legislative splits in the United States, with certain states like New York and Hawaii issuing and promoting such passes, versus a growing number of states like Florida, Texas, Utah, Missouri, and Idaho that have issued Executive Orders or legislation prohibiting use of such passes. This of course was juxtaposed against insights about how businesses and employers actually feel: namely that they want to be able to make their own decisions about whether to require vaccine credentials and do not want the government dictating the rules. The panel also discussed the legitimate concern about the patchwork of rules and how this will affect multi-jurisdictional employers. Finally, they touched on the role of offering incentives and other benefits to encourage people to get vaccinated and considerations businesses should undertake in relation to business travel.
- Technology and Data Privacy
Obviously one of the most cited concerns when discussing digital health passes is the issue of data privacy and security. Key factors include who is holding the data and what type of information is being asked for (such as underlying conditions or other sensitive health information). The panel discussed these concerns and how these issues are being addressed, particularly in light of varying data protection laws across countries.
Another key concern the panel discussed is forgery and authenticity of information, particularly across borders.
- Equity & Accommodation
Finally, the panel turned to one of the other key concerns COVID health passes raise: how to address inequality and accommodations for those who cannot (or will not) get the vaccine.
In terms of equity, the fact that many countries still do not have access to vaccines was examined. In addition, there is the concern of different vaccines having varying degrees of effectiveness and how that will play a role in requiring COVID health passes for travel and entry to other services. Highlighted was the fact that while vaccines have offered a way forward, they are not a silver bullet, especially with so many unknowns (such as variants and efficacy long term) are still out there.
In terms of accommodations, the panel addressed how employers are currently handling medical and religious exemptions, particularly here in the United States. Obviously this is different than how business approach the issue of customers or independent contractors — and how this may change with the new patchwork of state laws being passed.
For those that were unable to join us for the live session, we hope you will tune in and watch this fantastic webinar. Don't miss out!
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