HELENA MASIELLO—The economic and physical impact of COVID-19 has led government officials and industry leaders to consider novel safety measures, such as requiring employees to take regular COVID-19 tests and requiring employees to show immunity passports to enter their jobs. The proposed testing protocols would require workers to test negative for the virus before they are allowed to go to work. Additionally, the parameters of a negative test could not only encompass the absence of the virus but, also, the presence of COVID-19 antibodies. Immunity passports may come to encompass vaccinations and once the vaccine becomes widely available, individuals may have to show proof of vaccination to access restricted activities, such as travelling internationally. Individuals who can show proof that they have recovered from COVID-19 and have the antibodies may be considered eligible for immunity passports.
Governments in Chile, Germany, and the United Kingdom have been seriously discussing implementing immunity passports, however, the United States government has not recently signaled that it is planning on implementing such a policy. Nevertheless, there is a growing discussion in the United States about immunity passports, and a national survey suggests that the American people are evenly divided in their support of immunity passports. The survey found that the demographics that favored the passports most were: men, Caucasian individuals, and African American individuals. Opposition was, furthermore, much lower for individuals who expressed interest in obtaining immunity passports for themselves. Notably, the political affiliation of the survey’s participants did not significantly impact their stance on immunity passports.
New COVID-19 policies of mandatory employee testing and government implementation of immunity passports will likely be found illegal in United States’ courts of law. The American with Disabilities Act (“ADA”) protects Americans who have disabilities from discrimination in the workplace. Immunity passports and antibody testing raise concerns that individuals who do not have them will be discriminated against. The ADA defines “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individual;  a record of such an impairment; or  being regarded as having such an impairment.”
Immunity passports would likely be illegal in the United States because the ADA not only protects people with a disability but, also, those who are “regarded as” having a disability. Therefore, if employers begin to regard individuals without COVID-19 antibodies as physically impaired and limit their ability to perform their jobs, this would likely be a violation of the ADA.
The U.S. Equal Employment Opportunity Commission (“EEOC”), taking the ADA into account, advised on December 16, 2020, that antibody testing, like that proposed for immunity passports, should not be used to determine which individuals can return to the workforce. The EEOC is allowing employers to conduct the viral tests on their workers, which detects the presence of the COVID-19 virus. Viral tests are commonly used to test if a person is positive or negative for COVID-19 and are different from antibody tests. The latter test detects if a person has previously suffered from COVID-19 or received a vaccine and, therefore, created antibodies in their body. It seems more likely than not that antibody immunity testing requirements will be found to violate discrimination laws; the EEOC pointedly distinguished between antibody tests and viral tests.
It is not clear if it is illegal for the U.S. government to require immunity passports for passengers traveling internationally. Nevertheless, while such passports might not be illegal, it is unlikely the U.S. government would implement such a restriction on international travel. While the ADA would not apply to these passports because it is not within the context of employment, there are, however, major ethical and simple administrative concerns regarding such passports.
The passports may create a tiered society where individuals with greater wealth and access to vaccines would have the freedom to travel and go to the movie theater while poorer people would be restricted from such activities. There is also a host of ethical questions regarding the potential marginalization of unvaccinated group. As a result, if the US implemented immunity passports there would likely be domestic backlash. The ADA might become the focal point in a wave of litigation on behalf of individuals who are discriminated against because of their antibody status. Internationally, other countries may require immunity passports as a precondition for entry. The U.S. government may have to balance domestic policy and litigation against immunity passports with the reality that other countries are requiring them.
The World Health Organization cautioned against nations requiring immunity passports because there is currently insufficient evidence regarding the effectiveness of antibody-mediated immunity. Notably, because vaccinated individuals can still spread COVID-19, requiring citizens to have immunity passports in order to travel will likely not help slow transmission of the virus. The efficacy of the plan alone is enough to dissuade lawmakers, but the sheer administrative cost of compiling and verifying the vaccinated status of 350 million Americans likely ensures such a plan will never go forward.