By Loren Gesinsky and Julia Gorham

Seyfarth Synopsis: For many private employers around the world, it might be too soon to know what COVID-19 passports, if any, they will recognize, encourage, or even require. They see far more risks than benefits in being early adopters given fast-evolving variations in infections, the availability of tests and vaccines, government guidance and requirements, and worker and public sentiments about balancing public health with privacy and personal autonomy. COVID passports are only one piece of the jigsaw puzzle of getting our societies back on track and are not a panacea. They need to go hand-in-glove with other measures of safety, health, and good practices.

Still it is far from too soon for employers to begin considering the potentially relevant issues, which we previewed in the first-in-the-series post here. Even if your employees are not required to travel internationally for work, we anticipate that day-to-day business and social interactions and in-country travel, access to certain locations, or attendance at events, for example, will become subject to verification checks via COVID passport systems in many jurisdictions and industries. Therefore, we recommend beginning now to assess your pressure points and identify where a COVID passport requirement may overlap with your business needs and workforce management.

  1. Understanding the issues

What is a COVID passport?

A COVID passport is an electronic or physical record of an individual’s COVID-19 vaccine, test, medical exemptions, antibody and/or immunity status. Some of these passports also track movement and potential COVID exposure via enhanced check-in and track-and-trace mechanisms, as has been common in much of Asia for the past year.

The COVID passport systems are, in the main, being driven by two key areas: (i) government requirements for access to specific countries and services within them; and (ii) transport regulators / providers. But remember that not all vaccines are created equal. Governments have already begun to indicate they may not recognize certain vaccines based on where they were produced, scientific data, efficacy, etc.

There is already a proliferation of different systems and applications in use or development. Israel’s Green Badge system has already been implemented nationwide for multiple uses. Sweden and other countries are considering similar nationwide proposals. Systems / applications in development include EU Green Pass, Verifly, Travel Pass, CommonPass, Excelsior Pass, and IBM’s Digital Health Pass. Reports suggest that the World Economic Forum and the Commons Project are cooperating on developing a system to document COVID-19 vaccination records. A growing number of private organizations around the world have announced plans to require anything from simple checks of status verified by paper or handheld devices to more elaborate systems / applications still under development.

Across the board there are calls for standardized COVID passport approaches to be adopted globally or at least more broadly across jurisdictions and industries to promote consistency and clarity. It remains to be seen to what extent, if any, that will happen through agreement between governing bodies and/or organically.

What issues should private employers consider first?

At this stage there is generally no obligation for private employers to require COVID passports. That said, employers may already be expected to track the test status and safety of their workers to ensure that they know if any staff are affected, who is working onsite or at third-party locations, etc. Where private employers are most involved at this stage is where they want / need workers to be back onsite, interact with members of the community, and/or travel. Where staff can work safely and effectively from home / remotely, the issue of COVID passports is less pressing. For now we recommend that private employers promptly begin considering where their business may be subject to expectations or requirements to implement COVID passports arising from:

(i) government guidance and mandates;
(ii) travel-provider guidance and mandates;
(iii) approaches coordinated by industry / sector;
(iv) business needs; and
(iv) workforce expectations.

What are the key legal / compliance / risk issues employers should consider?

  • Practically the first question is can or must you mandate that your staff comply with or participate in any relevant COVID passport scheme operated by the stakeholders listed above? If so, what are the employment law issues? Is consultation with employees or collective bodies required? Private employers may be able to mandate COVID passports where it is impossible to fulfill certain business functions without the passports due to changing requirements. However, in the main, we think it will be challenging to mandate staff to utilize one. What will you do for employees who refuse? Can they be reallocated to roles where the requirement falls away?
  • Do any of your employees have medical, religious, or other reasons for being exempted from vaccination? If so, what is the impact on that exempt status from any passport requirements?
  • The issues around data privacy, data collection and usage and data security, managing liability / insurance are also key facets of any risk assessment that will be addressed in more detail later in this series. And colleagues have already begun addressing the immigration issues related to COVID passports here.
  • In some areas we have already seen great resistance to participating in these schemes due to perceived unwarranted encroachment on privacy and personal autonomy and fears of an excessive surveillance culture. These and other strongly-held concerns likely warrant careful consideration before implementation. Surveying employees and other stakeholders and communicating respectfully and transparently with them about their concerns can go a long way towards counteracting potential perceptions of heavy-handedness. Not acting with too much impatience may also help. As sports and other live-entertainment venues indicate they may require some form of passport to access events and as people may wish to travel on holiday, there is a likelihood that COVID passports will eventually become more common, accepted, and part of the social compact.
  • Increased risk of identify and data theft and fraud should be built into company contingency plans.
  • Are there any jurisdictions where liability might be passed on to the company for failure to mandate staff utilization of COVID passports?

Is wait and see a legitimate approach?

Yes, potentially. We get it. No one in top-flight business wants to be a follower. However, depending on the nature and location of your business, there are some advantages in waiting for the factors relevant to passports to coalesce and the potential diminishing relevance or irrelevance of passports once true herd immunity is reached and/or the effects of the virus are otherwise weakened. We are likely years away from having the global population at herd immunity, so a wait-and-see approach may be impossible from a cross-border, multi-national perspective for those of you with truly global operations. On the other hand, taking a viewpoint more focused on a single country like the U.S. or China, herd immunity might be reached for worker populations that only or mostly interact domestically much sooner and at a point in time when the wider consensus on COVID passports might not have been reached across the board, potentially meaning that the urgency for passports may fall away in some locales.

  1. Understanding others’ perspectives

Do you have the data you need to make informed decisions about what is required and what your staff think of any proposals? Serious consideration should be given to surveying at least your staff, and perhaps other stakeholders, corporate peers, and/or industry bodies about what they are doing, want, and are concerned about in connection with COVID passports. Once you are confident you understand these perspectives, you are better positioned to make an informed decision on what COVID passport approach, if any, is right for your organization. All too often we see employers, out of fear of being left behind or perceived as out of touch, pursuing an approach simply because other organizations are doing so, rather than because the approach is practical and right for them.

  1. Creating a roadmap

After carrying out an initial review / risk assessment of the above issues with your business, we recommend:

  • Identifying the areas of the business where COVID passports are most likely to be first encouraged or mandated.
  • Reviewing business impact, including by asking:
    • Does cooperating with COVID passport processes give you a competitive advantage and help increase business activity? Or the opposite?
    • If your employees work across jurisdictions, can you get comfortable with some divergence in approach to COVID passports across jurisdictions or can you drive towards adopting a more standardized approach across different jurisdictions?
  • Considering if there are alternative and less intrusive measures to appropriately manage the health and safety of your workforces and those with whom they interact.
  • Reviewing your workforce composition by segment, including by asking:
    • Are there categories of workers where a COVID passport is mandated by relevant authorities or strongly urged by stakeholders?
    • For which staff is in-person interaction essential or non-essential?
    • What workers are required to visit third-party sites and/or interact with members of the public?
    • Do we have staff who need to travel across jurisdictions domestically and/or internationally for work?
  • Considering which operational policies and procedures — e.g., travel, data privacy, insurance, and benefits — might be impacted or touched by the rollout of COVID passports (which will be covered in more detail later in this series).
  1. Identifying pressure points

Being realistic about what your organization can do and operationalize is key. There is little worse than rolling out a high-touch system and then abandoning it and/or experiencing it as ineffectual. Can you use existing programs in the market or satisfy yourself that individuals’ compliance with government- or other-third-party-mandated COVID passports is sufficient to ensure adequate protection for your business?

Are your HR teams briefed and up to speed on the issues? Can they answer questions from your workforce?

Data under COVID passports will be heavily regulated in most jurisdictions. Are your data-management processes and policies up to date and do you have internal stakeholders who understand the unique issues with personal-health-related data that will arise from COVID passports? Do you know where your data is and how it is stored and secured?

Are your third-party providers on top of the issues and have you agreed with them on desired and/or necessary changes to your working arrangements?

  1. Developing a flexible and nimble approach

Conceptions of COVID passports, the global approach to them, and the individual and societal perceptions of them are in flux and likely to evolve significantly over the coming weeks and months. Among other factors, the emergence of new COVID-19 variants and resistant strains, as well as the availability of, and science behind, the vaccines, will likely require adaptations.

It is essential that you continually reevaluate and update your understanding of others’ perspectives and your internal roadmap to ensure your approach remains flexible and nimble enough for you to adapt as changing circumstances warrant. Each organization’s unique circumstances will need customization and continual revision based on sector, jurisdiction, workforce makeup, and status of personnel.

You should accept that there will be significant differences in standards and acceptable levels of intervention by private employers between jurisdictions and industries, including both domestic and international. This is unlikely to be an area for a one-size-fits-all solution. At the high watermark, encouraging, rather mandating, employees to adopt all COVID passport options available to them or recommended by their local government authorities seems likely to be the most adopted approach.

Throughout the process, keep an eye to equity. The WHO is not recommending the use of COVID passports on the primary basis that travel should not be restricted for those without access to vaccines. Always remember that, across your organization, there may be different levels of access to vaccines, healthcare, and other relevant factors often impacted by socio-economic status and politics. Making assumptions can be dangerous, while striving to understand the perspectives of your staff on COVID-passport issues and communicating actively with them about these perspectives can go a long way in helping you manage employee relations positively.

Keep an eye out for the next installment in this series, which we expect to post within a couple of weeks. 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.