Air Travel During the COVID Pandemic: Are Vaccine Passports the Answer?

With COVID-19 vaccinations becoming widely available in many countries, and airlines looking to rebound from the significant decrease in air travel due to the pandemic, many companies and governments are looking to vaccine passports as a solution. (Jasper, Bloomberg Law). The International Air Transport Association (IATA) which represents 290 air carriers worldwide, estimates the industry could lose $95 billion in 2021 due to the continued pandemic, following what became the worst year on record for air travel in 2020. Id. In response, some airlines have supported a number of tech solutions to verify passengers’ COVID vaccination or testing results, including the IATA Travel Pass, the AOKpass from French travel-security company International SOS, and the CommonPass/Common Health apps developed by the World Economic Forum. Id. While these passes are an innovative solution based on international public health practices that have existed for decades, (WHO, International Travel and Health), they implicate a myriad of legal and policy issues which may hamper their roll-out.

First, it is important to note that this is a multifaceted issue. Least problematic are requirements, enacted by airlines themselves, mandating proof of a negative COVID-19 test result or vaccine prior to boarding. Health restrictions by private entities during the pandemic have generally been implemented without serious legal challenge. For example, prior to the election of U.S. President Joe Biden, COVID-19 mitigation policies in the transportation industry, such as mask requirements, social distancing, and the completion of symptom surveys prior to travel, were left to the sole discretion of each individual airline. (AP News). The authority of airlines over COVID-19 policies was further empowered by the January 2021 Centers for Disease Control and Prevention (CDC) Public Health Order. (CDC, Public Transportation Mask Mandate). In that order, which finally created a federal mask mandate for air travel, the CDC allowed airlines to impose stricter requirements at their discretion, such as a mandatory negative COVID-19 test prior to departure. Id. While this order seemingly gives the greenlight to domestic air carriers to require proof of vaccine, airline executives met with the White House in February 2021, and the CDC subsequently chose to not recommend that additional restrictions be placed on domestic air travel. (Holmes, CNN).

Conversely, a governmental mandate for vaccine passports (whether by local, national, or international bodies) at ports-of-entry could give rise to complex legal and political issues. Internationally, vaccine requirements have been in place for decades for destinations that continue to pose a risk for contracting diseases such as yellow fever or malaria. (WHO, International Travel and Health). In relation to the COVID-19 pandemic, the CDC requires international passengers to provide proof a negative COVID-19 test result or recent recovery from the disease. (CDC, Order Requiring Negative Pre-Departure COVID-19 Test). That being said, given the relatively recent beginning of the COVID-19 pandemic, vaccines circulating in different countries possess different levels of scientific support and governmental authorization. (Jasper, Bloomberg Law). For instance, the Chinese Sinovac and Russian Sputnik-V vaccines have yet to receive authorization for use in the United States. Id. This “vaccine nationalism” calls to question which vaccine “stamps” will be accepted when presenting a vaccine passport for entry. Id.

On a national level, government vaccination mandates have been the source of debate in the United States for over a century. While the federal government typically doesn’t have the constitutional authority to mandate the COVID-19 vaccine for the general population, the U.S. Supreme Court gave this authority to the states in 1905. (Mariner, American Journal of Public Health). However, vaccine mandates still come under fire by “anti-vaxxers,” or individuals who are opposed to vaccinations, on the basis of safety, religion, or respect for individual choice and bodily integrity. (Caplan, American Journal of Public Health). Even for those who are interested in receiving a COVID-19 vaccination, there still are privacy concerns related to the handling of medical data and fundamental questions of fairness with regards to equality in vaccine distribution. (Jasper, Bloomberg Law).

Ultimately, while vaccine passports themselves may not be problematic from a legal perspective, government-mandated vaccine passports for air travel are likely to be challenged both legally and politically, especially in the United States. With the CDC Order giving airlines discretion in implementing COVID-19 safety guidelines, it is likely best to leave it up to each individual company to decide on which domestic travel policies they prefer. Even given this discretion, airlines are likely to resist any requirements for a proof of vaccine or vaccine passport for domestic flights, in order to avoid further crippling the air travel industry. At most, airlines and governments could begin accepting vaccine passports in lieu of other documents (such as a negative COVID-19 test or proof of recent recovery from COVID-19) as a means to provide more options to meet the health and safety requirements when travelling internationally. This would have the practical effect of incentivizing the increased safety of air travel, while not penalizing those who have yet to receive a vaccine.