Now that the Pfizer and Moderna Covid-19vaccines have received emergency use authorization (EUA) from the Food and Drug Administration (FDA) and the “getting shots in arms” phase of the rollout is underway, it’s raising questions about what a society with a safe and effective vaccine will look like.
So far, much of the focus has been on whether employers are able to require their workers to get the Covid vaccine (in short: yes). But what about life outside of work — like air travel, or attending events at theaters, music venues, or sports arenas? Will private companies have the ability to require their customers or passengers to show proof that they were vaccinated?
Measures like these have already been in the news. In mid-November, Billboard reported that Ticketmaster was considering a policy requiring attendees to show proof of their vaccination status or recent Covid test results — something Ticketmaster says is not a policy, just an option they are “exploring.” Later in the month, Australian airline Qantas Airways announced that it would require passengers to be vaccinated against Covid-19, beginning in mid-to-late 2021. People from across the political spectrum were furious — in response, Ticketmaster’s competitors voiced concern, while some travel agencies stopped booking Qantas flights. To find out whether policies like these could become the norm — and what might happen if they did — Rolling Stone spoke with several experts in law, ethics, and public health. Here’s what to know.
First, let’s talk about logistics. Back in April, Rolling Stone reported on the concept of immunity certificates or passports — some type of documentation (electronic or paper) that would serve as proof that a person is immune from the novel coronavirus. And though much has changed since then — both in terms of understanding the virus and now having two safe and effective vaccines — Dr. L.J. Tan, an immunologist and the chief strategy officer of the Immunization Action Coalition (IAC), says that policies like these are still premature from a scientific standpoint.
Specifically, it is not yet known how long immunity from the Covid vaccine will last. “We haven’t got six months, nine months of duration of protection data yet,” Tan tells Rolling Stone. “So, what expiration date are you going to accept as a private entity? If I show up with a card that shows I got vaccinated five months ago, are you going to let me in? And then does that create a sense of false security?”
The potential problem here, Tan explains, is that a person’s immunity may have waned since receiving the vaccine, and they may be an asymptomatic carrier. Plus, Tan stresses that at this stage, the United States still hasn’t developed a rigorous testing and contact tracing strategy yet: something he says must be in place in order for mandated vaccine policies to be effectively enforced.
At the same time, given the significant scientific and technological advances made over the past year in response to the pandemic, some don’t see the logistical challenges as insurmountable. “This is 2020, so we do have digital options,” says Dr. Dorit Rubinstein Reiss, a professor at the University of California Hastings College of the Law, where she specializes in vaccine law and policy. “There are several apps that are being used for contact tracing, so it’s probably not hard to develop an app that will have a vaccine record.” Though, she notes, it’s important to keep in mind that any vaccine status app would have many of the same privacy concerns some have with contact tracing apps.
Can private companies legally mandate vaccines for customers?
The legality of these policies depends on where the company is based. “U.S. law only controls businesses inside the U.S.,” Reiss tells Rolling Stone. “There’s not much we can do if a business outside the U.S. decides that they are going to require a vaccine certificate for flying” — as would be the case with Australian-based Qantas.
But American companies are a different story. “The general rule is that private businesses are private legal persons. They have rights, and they don’t owe other people constitutional rights,” Reiss explains. “Basically, private businesses have a lot of leeway to determine what conditions they put on their businesses.”
There are, however, three legal limitations on private businesses that could apply to mandatory vaccination policies. The first, Reiss says, is that private companies have to work within the laws of their local jurisdiction. So if states or localities wanted to make sure that private companies don’t have the authority to issue vaccine mandates, they can always pass a specific law limiting the ability of a business to do this, she explains.
The second is that “public accommodation” businesses — like hotels, theaters, and restaurants — are subject to limitations found in the Civil Rights Act of 1964, including being prohibited to discriminate based on a person’s religion. According to Reiss, some may argue that their religious beliefs are in conflict with a vaccine requirement — something that those against masking policies have already attempted, unsuccessfully.
Finally, there’s the Americans with Disabilities Act of 1990, which requires businesses to make necessary accommodations for people with disabilities, which, in this case, Reiss says would include those for whom the current iterations of the Covid-19 vaccine are not recommended.
Between companies being given so much freedom to set their own policies, and the public having multiple ways to seek exemptions to them, Reiss predicts that when private vaccine mandates begin, they will be challenged in court. “I expect any businesses — or at least some — that put in such a mandate will probably be sued at some point,” she says. Sandra Spurgeon, an attorney practicing in Kentucky who specializes in civil litigation and health law, also sees this playing out in court. “There are advertisements from lawyers seeking clients to litigate against employers for employees contracting Covid in a business setting, or for those who contract the virus if they’ve been in a movie theater,” she tells Rolling Stone.
While there’s legal precedent of certain employers, like healthcare facilities, requiring employees to get vaccines, Spurgeon says that situations involving vaccine mandates for customers of private businesses is different. “What becomes dicey and uncertain is what happens to the entertainment industry,” she explains, referring to places like theaters and restaurants. “That becomes a more difficult analysis, because it is a private business and they can mandate what is required before providing a service to a customer. But is that going too far?” This is something she says has already been brought up by various anti-vaxxer groups regarding public health measures like face masks, who claim that the government is attempting to control what one can do with their own body. “It’s almost like a ‘Roe v. Wade-type’ analysis,” Spurgeon adds.
What are the ethical implications of private vaccine mandates?
Similar to immunity certificates, there are also the wider ethical implications of private businesses creating and enforcing vaccine mandates, according to Dr. Daniel Goldberg, an attorney and associate professor at the Center for Bioethics and Humanities at the University of Colorado Anschutz Medical Campus. “We are talking about differentiating groups of people, and permitting private actors to basically discriminate against them — to bar access on the basis of immunity status,” he tells Rolling Stone. “That, in and of itself, is perilous.”
It’s also important to consider any type of vaccine mandate — whether enacted by a state or a private corporation — within the historical and social context of vaccinations in this country. “As long as we’ve had inoculation and vaccinations in the West, we’ve had people opposing and resisting them,” Goldberg explains. “Vaccines are fraught for many people.” While there are many reasons for this, for communities of color this includes a history of mistreatment by and mistrust in those in the medical profession.
Besides, Goldberg says, there are ways to help get society back up and running that don’t involve vaccine mandates. “What I think is actually more likely to happen,” he explains, “is that even as things start to improve, and people start to get more access to vaccinations, I suspect that most of the venues and theaters will continue to — and should — enforce restrictions [like mask-wearing and social distancing] they should have been doing all along.”
Similarly, Dr. Nicole Hassoun, a bioethics professor at Binghamton University, says that we should keep in mind that the additional pressure of vaccine mandates — including those from private businesses — may not help. “I think it would be better if we don’t create that kind of pressure on people to get them to get vaccinated,” Hassoun tells Rolling Stone, noting that the pressure could further erode public trust in vaccines.
But with high rates of vaccine hesitancy in the United States, could people’s desire to get back to some version of “normal” life again — like seeing their favorite band perform live, or taking that trip that has already been postponed three times — be the push they need to get vaccinated? According to Tan, traditionally, that hasn’t been the way people have thought about vaccines. “The one exception to this has been flu,” he says. “What we’ve been emphasizing with flu is this idea that it’s going to take you away from all the things you really want to do.”
Ultimately, though, Tan would prefer a different approach. “The truth of the matter is we would rather incentivize people to get vaccinated other ways,” he says. “It’s not just protecting yourself, but protecting your family, protecting senior citizens, protecting a community. The last on my chain of things to do would be to say ‘Hey, you need to get vaccinated so you can go party.’ ”
From Rolling Stone US