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Evaluating the Uncertainties of Vaccine Passports

Chalffy / iStock

Since the onset of the COVID-19 vaccine rollout around the world, a common conundrum for employers was whether or not they should — or could — require their employees to receive one.

Most initial research on this discussion indicated that most organizations would not mandate a vaccination. However, in Littler Mendelson P.C.’s survey from February, 43% of the 1,800 organizations surveyed said they were still considering the possibility of such a policy.

In the same vein, a new conversation around the vaccine has emerged and that is the concept of “vaccine passports.” New York, for example, became the first state to launch an app that can be used to confirm a person’s recent COVID-19 test result or provide proof of vaccination. The United States government has been involved in developing standards for vaccine credentialing, but the Biden administration announced there will be no centralized federal vaccinations database

It is expected, however, that private companies will develop such digital passports and it will be up to employers to decide whether or not they will utilize them. Organizations that rely heavily on business travel would be the most likely candidates to deploy COVID vaccine passports. Similar vaccine passports already exist for international travel, thus it stands to reason that multinational companies would be most likely to implement COVID vaccine passports to expedite the return to normal operations.

WorldatWork’s “COVID-19 Employer Plans and Employee Perceptions” survey did, however, find that organizations are still managing travel expenses conservatively and adjusting the way they do business to incorporate less travel, with 68% of organizations expecting the same level of business travel or less in 2021, as compared to 2020.

Mercer analysis noted that while vaccine passports might make sense from a logistical standpoint, there are still privacy, operational and even ethical risks involved for employers. While the EEOC’s guidance allows for employers to require employees to provide proof of vaccination before returning to the workplace, there are certain accommodations employers will have to make as it relates to disability and religion; this is likely no different with vaccine passports.

For instance, if an employee refuses the vaccine due to disability, the employer is obligated to engage in the interactive process to determine the availability of “reasonable accommodation” without causing the business undue hardship. As it relates to employees who refuse the vaccine based on sincerely held religious beliefs, the EEOC uses a very broad definition that generally includes moral or ethical beliefs. As for what constitutes a reasonable accommodation, employers generally are not required to make such major modifications to job duties that the position no longer fulfills its purpose.

“Employers need to be careful if they have allowed job modifications such as remote work over the last year and employees have remained productive,” Mercer noted. “It would be risky to now require an employee requesting accommodation to prove vaccination status and return to the workplace, rather than allowing remote work to continue.”

Employer Considerations

Mercer’s analysis identified several considerations for employers looking to implement or mandate a vaccine passport program. Organizations might default to job-specific vaccine passports for those employees working in an area where one might be a necessity. The clearest case of needing proof of vaccination in order to perform certain job functions is for those required to travel internationally for their work, Mercer said. Additionally, employees whose jobs require them to go onsite at health care facilities or, potentially, schools, may need to be able to prove that they are vaccinated.

Organizations also should determine whether the implementation of a vaccine passport system will negatively impact a portion of your workforce. Employers must be cognizant that because of variances in vaccine distribution, segments of the employee populations may lag behind others in getting vaccinated and thus be affected to a greater degree if rights and privileges in the workplace hinge on proof of vaccination.

Employers also need to be aware of the privacy and security risks related to digital data storage, particularly where new technology is involved, Mercer said. What is not commonly understood, however, is that HIPAA protections would not extend to the information in a vaccine passport, as health care providers and group health plans would not be involved in disclosing it. Employers can manage other risks related to digital data storage by ensuring that any platform they ask employees to use has safeguards in place to maintain data security and integrity.

The CDC now says that a fully vaccinated person who is a contact to someone with known disease no longer needs to be quarantined or tested. This is important to employers in terms of cost, productivity and workforce management, and some organizations are asking their people to provide proof of vaccination in the course of contact tracing. This raises the question of how to keep this information secure while being able to demonstrate that the correct steps have been taken to mitigate risk to others in the workplace.

The Biden administration has said it will provide guidance on issue and use of vaccine passports for the private sector, but employers should still prepare themselves for the various hurdles that might exist.

“As we have seen time and again this past year, situations evolve very quickly in the pandemic era,” Mercer wrote in its analysis, “and employers should think through the issues now and be ready to move swiftly should the right app appear.”

About the Author

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Brett Christie is the managing editor of Workspan Daily.

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