Judge Damon R. Leichty of the U.S. District Court for Northern Indiana ruled on Monday, July 19, that Indiana University could require that its students be vaccinated against the COVID-19 virus before coming to campus. With the Delta variant on the rise in the United States, hospitals in states where vaccination rates are now seeing a sharp rise of new COVID cases, and some counties reinstating mask requirements, the pandemic continues. Here, Stanford health law experts Michelle Mello and David Studdert discuss the ongoing pandemic, proof of vaccination “passports” at the state and federal levels, Judge Leichty’s decision, and how the law is developing.
Former head of HHS Kathleen Sebelius recently strongly advocated for proof of vaccination as a way for those who are vaccinated to get on with their lives. Is there a legal reason the Biden administration—or states like California—aren’t moving forward with vaccine “passports?” What are the legal downsides?
The legal path to establishing vaccine certification systems, and using them to regulate access to congregate settings, looks fairly clear. States and counties have the legal authority to do this, provided the public health threat is real and substantial—and the surge we are seeing today in infections and hospitalizations in almost every state puts that issue beyond doubt.
But there are a few wrinkles. First, any such program must be implemented evenhandedly, and can’t be used as a pretext for invidious discrimination. So, for example, businesses that insist on certification for their employees or customers may need to allow for exemptions on medical and religious grounds, and make some accommodations—for example, allowing unvaccinated employees back to workplaces if they mask and undergo regular testing.
Second, the path isn’t so smooth in the 15 or so states that, like Florida, have passed bans on vaccine certification requirements or vaccination mandates. The legality of some of those bans, particularly the ones passed by an executive order from the governor rather than a legislative process, is questionable. Expect some legal challenges.
Finally, there is a lingering question about whether it is lawful to insist on vaccination while the vaccines remain under an Emergency Use Authorization from the FDA, as opposed to full approval. Most public health law experts do not regard this as a meaningful impediment to passports, but perceptions of illegality have taken root. In any case, this concern will become moot later this year when two of the vaccines are expected to receive full approval.