The idea of “covid passports” for international travel, and even for domestic use in certain hospitality settings, has been circulating for some time and is looking ever more likely. Inevitably, it brings with it a host of potential legal issues.

With other countries already developing their own covid certification systems, such as the European Union’s “digital green certificate” and the “Green Pass” in Israel, the UK government is currently considering how it can fairly introduce covid passports (or as they prefer to call it, “COVID-status certification) into the UK.

What do COVID passports mean from an employment perspective? Are there any issues, concerns or hidden problems that need to be considered?

We all know by now, the majority of employers have had to adapt to many different workplace policies and health and safety protocols, many of which were likely unheard of pre-pandemic. With many businesses re-opening we are now, therefore, seeing that an integral part of these plans will be face mask mandates and social distancing policies. With the availability of vaccines and vaccination rates increasing daily, tracking a workforce’s immunity status is likely to be the natural next step on the reopening front, thereby forcing many employers to make decisions about whether and how to gather and track this information.

There is currently no obligation on employers to require COVID passports as a pre-condition to being able to work at a certain employer or to enable them to interact with customers/the public. Hand in hand with this is that there is also no obligation to require employees to get vaccinated. What employers are obliged to do is comply with local and national health and safety standards and guidance.

For each business, there will of course be varying circumstances. with COVID we cannot take a 1-size-fits- all approach… so there will be employers, such as those that want or need workers to be back on site, interact with members of the community or travel, that will most likely benefit from more rigorous infection-protection protocols and in turn may therefore benefit from adopting or recognising one or more forms of COVID passport. On the other hand, for those businesses where staff can work safely and proactively from home or in another single location with little travel etc, the issue of COVID passports is less pressing.

What risks are there for any employers considering a COVID passport system?

As we all know, all employers must comply with local and national equal employment opportunity and anti-discrimination laws. What this means, is that employers must be prepared to grant reasonable accommodations to employees with a disability or a sincerely held religious belief that may prevent them from being vaccinated.

Another aspect for employers to consider is, if an employer was to grant privileges of employment, to vaccinated individuals that are unavailable to unvaccinated individuals, it may give rise to a risk of discrimination claims from those who have not been vaccinated for a protected reason. Employers also need to use caution before disciplining or terminating employees who refuse to participate in or raise objections to COVID passport system, as doing so may again create further risks of discrimination claims. On the other hand- if playing devil’s advocate- requiring employees to present a COVID passport before entering the workplace or interacting with clients may help demonstrate the employer’s commitment to health and safety measures and potentially limit liability if an employee contracts COVID. There is therefore a balancing act to be had.

The key thing to take from this, from an employment law perspective, is that employers should not take this decision lightly and should be cautious before jumping on the COVID passport bandwagon too quickly. The issues surrounding COVID passports tracking vaccination and immunity status are evolving rapidly and so guidance and best practice on this are likely to change dramatically over the coming weeks and months. Our advice to employers is to continually re-evaluate their understanding and keep up to date with the legal do’s and don’ts and to do all this whilst trying as best as they can to remain flexible and nimble enough to adapt as changing circumstances warrant.

What are the data privacy implications of COVID passports?

How exactly a digital COVID-status certification will work in practice is uncertain, but a number of key data privacy issues have already been raised.

Currently, as of 17 May 2021, the NHS app has been developed so that it contains a separate section which can be used by individuals to prove their Covid vaccination status. In the future, the app will also contain Covid test results.

The key to the success of the scheme is public trust and this will depend on people feeling confident that their data is secure and only being used for legitimate and lawful purposes. We’ve seen these difficulties already with the rocky development of the NHS COVID-19 app and the manual NHS Test and Trace programme.

Most importantly, any such certification scheme would need to comply with the GDPR, which requires a higher level of protection for personal data which is considered to be particularly sensitive, such as health data (e.g. vaccination records and test results).

For example, personal data must be processed:
• lawfully in accordance with one of the legal grounds for processing;
• transparently so that data subjects are clear on how their data is collected and what it is used for;
• fairly e.g. without being unfairly discriminatory;
• only to the extent necessary for the purpose for which it is being processed; and
• with the highest standard of security to avoid an unauthorised access, use or disclosure.

Concerns have already been raised that any data collected through the COVID-status certification scheme may be used beyond the scope and timeline of the pandemic. Furthermore, there are significant challenges where data is being shared with third parties, particularly on a cross-border basis with countries based outside the European Economic Area.

The UK government is currently considering which industries it may allow to implement COVID-certification status schemes. Ultimately, for any businesses wishing to rely on the scheme, our advice is to review your data privacy processes in line with the legal requirements and specifically in relation to the processing of special personal data.

As always, if you have any questions on the above, our team will always be happy to help, so please feel free to get in touch!