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Legal Questions Surround 'Vaccine Passports'

MICHEL MARTIN, HOST:

Have you gotten your jab? If so - maybe even if not - you're probably among the tens of millions who are ready to get out of the house and go somewhere, which is one reason why the idea of a vaccine passport has become an intriguing idea and the latest political flashpoint related to COVID. What are we talking about? Similar to that passport you show across an international border, the idea is that people would be required to show proof of vaccination before going certain places - concert halls, gyms, maybe airplanes, maybe whole countries. So we decided to spend the next few minutes looking at this from different angles.

Later, we'll dive into how the travel industry is thinking about this. We're also going to ask about the social implications, whether this could open up new divides. But first, we want to talk about the question that immediately comes to mind - are vaccine passports legal? Several prominent Republicans and libertarians have claimed that they are a breach of privacy. The governors of Texas and Florida, both Republicans, have taken steps to prevent businesses and agencies within their states from requiring patrons to use them.

So what does the law say about this? To help us answer that, we've called professor Robert Field. He teaches law and public health management and policy at Drexel University, and he's with us now.

Professor Field, welcome. Thanks for joining us.

ROBERT FIELD: Thank you.

MARTIN: So, first of all, is there any precedent for this? I mean, I think that in most places, there are pretty strict rules around kids attending school or enrolling in school. You have to show proof of vaccination, or you have to have some pretty strict reasons for not getting vaccinations. So is there any precedent that people are looking to around this?

FIELD: Well, school vaccines are definitely a precedent. Every state has rules for vaccination before a child can attend school. They vary in a lot of the details, but every state has them. For international travel, there are some countries that require vaccines against yellow fever and other endemic diseases. We had vaccine passports of a sort even a hundred years ago, when we were worried about plague and smallpox. So this is not a new concept, and it is, in fact, precedented.

MARTIN: So what's the state of things now, though? Because I confess that other than the school example, I wasn't aware of the other ones that you cited there.

FIELD: In terms of adults, there are groups that are subject to mandates. One is immigrants to get a green card or citizenship, and the other is members of the military. So there's a precedent for that as well.

There's been a change in the law over the last hundred years, most notably with regard to disabilities. The Americans with Disabilities Act, passed in 1990, says that an employer or a business cannot discriminate against people based on a disability. And if someone were not able to take the vaccine because they were immunocompromised or allergic to vaccine components or some other reason, they could argue that they were being discriminated against based on that disability.

Other than that, however, in the absence of a state law prohibiting vaccine passports, as we may be seeing in Florida and Texas, there's nothing to prevent a private business from instituting it.

MARTIN: So let's talk about the - Florida and Texas to this point. They have issued executive orders targeting the use of these passports. They say that this raises privacy concerns. What are your thoughts about that?

FIELD: I don't see this raising major privacy concerns. The information that you provide would be voluntary. If it's a business that you don't have to use, if it's a theater or public transportation or a health club, it's your decision whether to go in there or not. So I don't see the legal aspects of the privacy issue as particularly significant.

MARTIN: Well, we called you for your expertise in this field, so I thank you for that. But I am interested if you have an opinion about whether vaccine passports are good public policy or not.

FIELD: I think a passport of some sort is good public policy. I think the term passport is somewhat unfortunate because it sounds like a national passport that restricts your freedom of travel. And if we meant really evidence of immunity, where you could show it in different ways - immunization, recovery from the virus, a recent negative test - it would be much more flexible, would accommodate most people's objections and would be very important in terms of reopening our economy and our society.

Think of it - you run, say, a health club. Would you want to be able to reassure your customers that the risk of infection is extremely low? This is the most effective way to do it. Why would we want to prevent them from doing that? We could let the market decide. We could let some health clubs require proof of immunity and others not and see who gets business and who doesn't.

But I think for the government to come in and restrict the ability of private entities to make their facilities as safe as possible is not good public policy, and it's certainly not in the interests of ending the pandemic.

MARTIN: That was professor Robert Field. He is the director of the JD Master of Public Health Program at Drexel University School of Law.

Professor Field, thanks so much for joining us.

FIELD: Thank you. Transcript provided by NPR, Copyright NPR.