COVID-19 and the idea of What is a Vaccination Passport

Florida infection rates have been on a dramatic freefall in the last few months, in large part due to the vaccination rate among seniors and those with compromised immune systems, however the CDC still believes we are not out of the woods yet and has encouraged families to practice smart effective strategies to help keep you and their families safe and healthy. Now, many other states are dropping the age of individuals who are now eligible to receive the vaccines manufactured by several different big pharmaceutical companies.

The Shiner Law Group decided to review the latest “idea” being floated from several different sectors of our society and have decided to break it down for our friends in our community.

That idea being the COVID passport or a vaccination passport. Of course, this idea is nothing new, we heard rumblings for months now, however it was premature to even consider this idea because the pandemic was in full force at the time. Now that more and more Americans (over 2 million per day) are either fully vaccinated or in the process of getting vaccinated, this idea is getting more attention.

The Miami Heat recently announced that there would be special sections for fully vaccinated fans, although they would still be required to wear a mask. Countries in Europe are discussing ideas of only allowing fully vaccinated travelers to enter their borders and New York believes that having a COVID-19 passport system will allow businesses to thrive again.

The idea of a COVID passport is simple, if one has been fully vaccinated they would have access to a “passport” which identifies them as a fully COVID vaccinated person who is entitled to certain privileges others, who may not be fully vaccinated are not, such as flying, entering countries which mandate a COVID passport, or in the case of New York, entering sporting venues and going to the movies.

The Biden Administration seems to be on board. They recently announced that they are working with the private sector on an application that can be downloaded to their smartphones which will detail your credentials that you are a fully vaccinated person.

But, importantly, what about a person’s right to privacy – especially as it relates to their health care and conditions. All this creates concerns for the privacy rights of Americans and more importantly what this new idea would do to current HIPAA laws in the United States.

HIPAA stands for the Health Insurance Portability and Accountability Act of 1996, a federal law that created a national standard to protect the rights of patients in America, in particular their health information from being disclosed without the patient’s consent and knowledge. It goes so far at protecting your rights that employers cannot even ask certain leading questions when it pertains to your health. Questions such as “oh my how are you feeling” may cross the line and can be subject to a HIPAA violation.

Besides HIPAA Concerns, there are ethical and privacy concerns as well. The passport would record one’s vaccination information, which may or may not include additional data about the passport holder, such as name, age, address, weight etc. what happens when the data is breached?

There are also ethical concerns as well. It could lead to discrimination against poorer countries and those who have not been able to get the vaccine. Countries with more money could divert vaccines away from poor countries in order to provide the vaccine to their own people who want to start to travel, thus prioritizing wealthy countries over poorer countries.

However, we believe the most pressing issue regarding the idea around the COVID passports is the HIPAA and Privacy concerns. The concerns surrounding the ethical issues and discrimination will only last a few months as more and more doses of the vaccine become available.

The current HIPAA laws have an exception built into the rule, which states that your health records can be disclosed for the public interest and benefit, the specific carve out states if there is a “Serious Threat to Health or Safety”, government agencies can argue that the COVID crisis is a serious threat to public health and will be able to use this HIPAA carve out to enforce a COVID passport. However, one can argue based on the recent changes to law in states such as California regarding AIDS/HIV laws, where the state stated that because of medical advancements that help promote and prolong healthy living with those infected with AIDS/HIV, stringent laws enacted decades ago should be modified. Laws implemented at the height of the AIDS/HIV epidemic by lawmakers across the country enacted stringent laws which criminalized certain behaviors of people living with AIDS/HIV. Some of the laws made it a felony to knowingly expose a sexual partner to AIDS/HIV, meaning that if you know or suspect that you may have AIDS/HIV you are obligated to inform your partner prior to engaging in a sexual relationship, to better inform and protect your partner. Since then advancements in the treatment of AIDS/HIV have advanced and these laws are slowly being reversed. One can also argue that new advancements in the treatment of CVOID which help the recovery from the infection much faster can also be used as the basis to argue against the COVID passport.

Additionally, prior to the pandemic the common flu caused more deaths than traffic accidents. According to CNN in 2018, 80,000 Americans died due to the flu and we didn’t require masks or a passport for those vaccinated from the flu. Statistics show that 2018 was the deadliest flu season since 1976. In 2012 there were 12,000 deaths from the flu and in 2013 there were 56,000 deaths. Additionally, data reveals that the 2018 flu vaccine reduced the risk of those vaccinated to seek medical care by 40%. Data also indicates that the 2019 flu wasn’t as severe as the 2018 flu. In 2019 approximately 40 million Americans contracted the flu which led to the hospitalization of over 600,000 Americans and there were around 61,000 recorded deaths, in fact the effective rate of the vaccine in 2019 was 29% much lower than that of the 2019 vaccine.

The government has a wide berth to pass laws which help benefit public health, as long as these laws do not infringe on a person’s constitutional rights, it would be difficult to argue that a vaccination passport infringes on the rights of Americans due to health concerns, but the invasion of privacy is a stronger concern.

Finally, we have seen from other countries a willingness to give up freedoms for the physiological feeling of being safe from the CVOID virus, thus enabling their governments to require COVID vaccinations and a COVID type passport to prove vaccination in order to enter and travel that country. If that is the case, then those wanting to travel outside the US would be required to take the vaccine.

If we give into a government mandate for COVID passports, what is to say they do not take it an additional step and start adding other health information to the passport. For example, if you go to an amusement park and have a slight heart condition, they will not allow you to ride the roller coast because of the risk to your health. Where does this invasion of your privacy stop, or more specially when?