By Anne Dana, Loren Gesinsky, Julia Gorham, John Tomaszewski, and Kevin Young

Seyfarth Synopsis: “I can’t wait for things to return to normal.” We’ve all heard (and most of us have spoken) those words since the COVID-19 pandemic began over a year ago. Now, as the employer community inches closer to the time we longed for, many have realized that the journey from here to a new normal may present nearly as many questions as we’ve encountered on the road to here. Few questions have generated more buzz in recent weeks than COVID passports—a method to track an individual’s COVID-related metrics (e.g., vaccine status, antibodies, negative tests). In this post and the series that will follow it, we address the opportunities and risks the passport presents for private employers.

Private employers are at the vanguard of economies reopening. The impact of their success (or failure) in safely returning workers to “normal” will stretch beyond their respective walls and financial statements. With the enormous burden they shoulder, it is only natural that many employers will consider whether a COVID passport—and the opportunity it presents to ensure a vaccinated or otherwise COVID- and transmission-resistant workforce—is a proper checkpoint to place in front of certain in-person interactions.

Will employers be permitted to add the passport to their COVID safety tool belt? The answer, like so many these days, is that it depends. Due to differences between states, countries, and business sectors, as well as varying individual beliefs surrounding privacy and health, there is almost certainly no one-size-fits-all approach to a passport solution. Each organization’s unique circumstances, as well as the shifting COVID-19 landscape in which it operates, will likely warrant a tailored touch in deciding whether to implement, and then monitor and update, a passport program, with consideration given to factors such as sector, jurisdiction, workforce makeup, and the degree to which onsite work is essential or beneficial.

So, what should private employers be doing to prepare for the potential use of COVID passports? In this series, Seyfarth will walk private employers through the main elements of COVID passports, outlining the key areas for immediate action, those where adopting a “wait and see” approach may be preferred, and the central questions that should be asked as part of an internal dialogue with relevant stakeholders.

The state of COVID passports is rapidly evolving, so we will adapt this series as necessary to bring you the most recent updates on this issue.

What is clear is that every private employer needs to identify the extent to which it might voluntarily require COVID passport use by employees, contractors, business partners, and the like (where not mandated by government), and how it will approach difficult issues where those persons are hesitant or unwilling to participate. These discussions may require organizations to attempt to align their approach with their values on other important matters such as privacy, immigration, and corporate culture.

In this series, we will address the following:

  1. Designing your organization’s approach. Might requiring a COVID passport be a good option for your business? If so, to whom should those requirements apply? How do you deal with the proliferation of different forms of COVID passports that may be needed? Is a COVID passport required for certain methods of transport? Or do you adopt a program simply as part of good corporate citizenship?
  2. Technology and data privacy. Will you be using an app, QR code, or more simple form of passport? What role could Blockchain-facilitated identifiers play? What should / can you ask your staff to share with you, how will you use it, and what are your compliance obligations after that point? What are the rules on storage / retention and transmission of data? How do you manage that data flow across jurisdictions in which the expectations and requirements regarding the treatment of health-related data differ greatly?
  3. How might governmental and organizational passport requirements apply and interplay for businesses with cross-border relocation and travel requirements.
  4. Equity and accommodations. Will accommodations be needed for religious, disability, and other grounds? What are the other potential impacts on diversity, equity, and inclusion initiatives? With uneven vaccine distribution and roll-out, how does an organization that spans socioeconomic boundaries manage to demonstrate equity via the matters that are within its control?
  5. Liability, risk, and insurance. Does a passport program give a false sense of security? Nothing is 100% effective, so how do you manage latent risk? Does it matter that efficacy standards of vaccines differ by brand and by individual reaction? Recognizing the continued relative scarcity of vaccines in some areas, how might anti-body or other immunity passports help you manage risk? Moving into the next phase, how do you manage evolving variants and the potential need for continual re-vaccination?

Keep an eye out for the next installment in this series, which we expect to post in around a week or two. And please do not hesitate to reach out to the authors or your favorite Seyfarth counselors to discuss these issues in a more personalized manner.