Will a Vaccine be Necessary to Fly in the Fall of 2021?

On Friday, April 2^nd the Centers for Disease Control updated its guidelines for safe travel during the next phase of the global COVID-19 pandemic. Taking into account current scientific understandings, the latest evidence, and the current state of infections, the CDC announced that fully vaccinated individuals can now travel relatively safely within the U.S. Additionally, the CDC suggests that travelers no longer need COVID-19 testing before the flight, or self-quarantining afterward, but only normal social distancing measures like masks and crowd avoidance in order to maintain this low personal risk of infection. As a result of this announcement, it is expected that moving forward transportation providers—like airlines—will seek means to ensure that travelers are vaccinated in order to restore confidence in the struggling industry.

One such measure that has gained notoriety recently is a possible requirement for travelers to maintain a vaccination passport, a form of digital proof of vaccination. An example of this is International Air Transport Association’s IATA Travel Pass. The app is being trialed by over a dozen international airlines including Japan Airlines, Singapore Airlines, Qatar Airways, and Emirates. The app would allow travelers “to find information on travel, testing and vaccine requirements for their journey” and also share proof of tests or vaccination with the relevant authorities in order to facilitate travel. In the U.S., the state of New York, as well as United Airlines, and JetBlue have launched vaccine passports programs or have conducted trials on the measure.

Overall, industry experts see vaccine passports as a necessary measure in order to return to pre-pandemic levels of international travel and, therefore, expect them to become more common in the come months.

Overall, industry experts see vaccine passports as a necessary measure in order to return to pre-pandemic levels of international travel and, therefore, expect them to become more common in the come months. Roy Goldberg, an aviation litigation partner at Stinson LLP, stated that: “Efforts by airlines and governments to use programs and laws to create a safer onboard environment and experience during the pandemic are well-intended and may be critical in helping the industry recover[for]… it remains crucial that vast swaths of the public feel safe to travel by air.”

However, vaccine passports have their issues and their detractors. On the same day that the CDC released their new travel guidelines, Florida Governor Ron DeSantis signed an executive order banning the use of vaccine passports in the state citing concerns regarding personal freedom and privacy. In a press conference, he said, “It’s completely unacceptable for either the government or the private sector to impose upon you the requirement that you show proof of vaccine to just simply be able to participate in normal society.”

Governor DeSantis is not the only one who considers vaccine passports a major privacy concern. Stinson LLP’s Roy Goldberg believes vaccine passports could lead to numerous privacy-related lawsuits. These potential lawsuits may argue that vaccine passports are antithetical to federal HIPAA regulations or in violation of state laws. Moreover, concerns regarding the security of health data stored within the passports have also entered the conversation.

Likewise, vaccine passport skeptics also raise issues of disparate impact which also could lead to legal challenges resulting from charges of discrimination. On this issue, Alexa Miller of Faegre Drinker Biddle & Reath LLP asked: “How will the industry account for vaccine hesitancy among pregnant women and minority communities?” As a result, she believes that “[i]t will be important to ensure that COVID-19 travel passports are not limited to those who have been fully vaccinated, as some people may have religious or philosophical objections to the vaccine and others may need accommodations based on a disability or medical restriction that prevents them from getting vaccinated.”

Possibly in response to these issues and recent news coverage, Dr. Anthony Fauci, the chief medical advisor to the President, confirmed on Monday, April 5^th that the federal government will not create a national mandate for the use of vaccine passports by travelers. However, he did foresee vaccine passports catching on among private entities. Altogether he sees the federal role in vaccine passports rollout as “making sure things are done fairly and equitably,”

Ultimately, Stinson’s Roy Goldberg does not expect that U.S. airlines will implement mandatory vaccine passport programs, it may become a feature of traveling on foreign airlines. However, as the airline industry attempts to return to its pre-pandemic state and restore confidence in flying, the public should expect in the next few months to see more efforts and technological solutions that will change how Americans fly.

Keenan Conder