With travel resuming, different destinations may require proof of vaccines or vaccine passports for visitors. Side Effects Public Media reporter Stephanie Whiteside spoke to Camille Davidson, dean of the Southern Illinois University School of Law about the legal and privacy questions raised by these requirements, as well as other legal questions around vaccine mandates.
Side Effects: What are we talking about when we say vaccine passport?
Davidson: Typically we are talking about a digital document or digital way of letting people know that you have either been vaccinated or that you have tested negative for COVID-19.
Some people say these are a violation of medical privacy or civil liberties. Is that true?
First of all, for privacy, most people want to throw out HIPAA [Health Insurance Portability and Accountability Act of 1996], right? HIPAA applies to medical professionals, hospitals, medical providers, insurers. You are providing the information. It is not a health care provider providing information about you to a third party. Also, we all like to talk about our civil liberties. So we do have precedent. It's old, it's 1905. The case is Jacobson versus Massachusetts. And it had to do with whether or not a state can mandate a vaccination. And the Supreme Court of the United States in 1905 said yes, absolutely, you can. At that time, it was the state of Massachusetts, and it had to do with a smallpox vaccination. And so what we know is that yes, we all have civil liberties. But our civil liberties are not unlimited.
Public health is usually handled by states. Do you think there might be a federal mandate for vaccines or vaccine passports?
For a number of reasons, a mandate for the actual vaccine is probably not a good idea. And so when we look at whether or not we would have a digital passport, the optional approach is the approach that states that are moving forward are taking. And so the idea is for it to be free. The idea is also for it to not invade people's privacy unnecessarily, but also to provide some opportunities for people who have been vaccinated to show that.
Do you think we’ll see court cases involving vaccine passports?
It’s America, so there's litigation over everything, whether it's valid litigation or not. I'm not so sure. At this point, we do not have any federal mandate for any passport. So I believe as long as we stay within the private sector, as long as we stay, it’s optional, I don't see that there's really anything for anybody to sue over at this point.
What about employers? Can they ask if you're vaccinated?
If an employer wants to know whether or not you've been vaccinated, that is not a violation of HIPAA. If there were a mandate of any sort, it would have to have exemptions and typically they are for physical or health reasons and for religious reasons. But certainly we're at a point where employers can ask whether or not their employees have been vaccinated without violating any laws.
In terms of mandates, would there be any restrictions on what employers can require?
So the EEOC [U.S. Equal Employment Opportunity Commission] has already stated that employers can require the COVID-19 vaccination for their employees. They do have to offer exemptions for medical reasons and religious reasons, and they do have to offer reasonable accommodations, such as remote work. So it's clearly lawful for businesses to require proof for their employees. It's most likely also legal for businesses to refuse anyone who cannot present proof of their status. We already see restaurants — before COVID — have no shoes, no shirt, no service.
But people are already protesting the idea of vaccines being required — what's the legal view of those objections, when it comes to things like restaurants or concerts?
That’s true, that’s true. But typically, we're talking about fundamental rights, right? So there is no fundamental right to go to a ballgame. There is no fundamental right to go to a particular concert. There is no fundamental right to eat at a particular restaurant. And COVID-19 is not a protected class. I think that is a misunderstanding of a lot of people that absolutely we have rights. We have individual liberties, but we do not have unlimited liberties in this country. There are restrictions.
So these restrictions you mentioned, those are all from that earlier 1905 case, correct? Do you think that will stand up in 2021?
I will share with you language from the court opinion from the Jacobson case that I shared with you earlier. The court said that mandatory vaccinations are neither arbitrary nor oppressive, so long as they do not go so far beyond what was reasonably required for the safety of the public. And so I think that's what we're dealing with now. If we have another outbreak and we don't know what to do, the safety of the public outweighs that individual liberty that we're talking about.
