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What are the equality implications of a COVID-Passport?

Partner, Paul Johnstone

The UK Government is currently exploring the possible introduction of a COVID-status certification, also referred to by many as “COVID passports” or “vaccine passports.” On 5th April 2021, the Government announced it would run a COVID-Status Certification Review, looking into whether COVID-passports could reopen the economy and reduce or remove the need for social distancing restrictions.

A COVID status certification will indicate that specific individuals are at a reduced risk of transmission. Other countries are already adopting their own versions of “COVID passports,” such as the “Green Pass” in Israel and the “digital green certificate” in the European Union.

The Government is proposing that COVID-status certification can be demonstrated by: an up to date vaccine status, but also evidence of a negative lateral flow test or PCR test taken at a test site on the same day or day before entry to a venue or evidence of natural immunity.

What does the Government’s review cover?

The Government’s review will assess the following:

  • To what extent certification would be effective in reducing risk.
  • The potential uses to enable access to settings (which could include workplaces).
  • A relaxation of COVID-secure restrictions.
  • The ethical, discrimination, privacy, legal and operational aspects of COVID status certification.
  • What limits, if any, should be placed on organisations using COVID status certification.

This review has been launched so that its findings can be presented prior to ‘step four’ of the Government’s roadmap out of lockdown, which is currently expected on 21st June 2021. This stage is expected to be the final part of the roadmap and the government has stated it hopes “to be in a position to remove all legal limits on social contact,” meaning that premises such as nightclubs can open and large events can take place.

Could Vaccine Passports be discriminatory?

Although the vaccination program is now at an advanced stage, there are those who may not be able to get the vaccine, or necessarily want to. The Government have confirmed that an accessible passport permitting entry to events and for travelling purposes could be acquired not just from vaccination but by testing and natural immunity.

Unless the Government introduces legislation to the contrary, in order for such passports to not be discriminatory in line with current equality law, vaccine passports should be limited specifically to non-essential services. For example, they should not limit people’s ability to use public transport or access public services etc. and these passports should not confer any special rights that puts those who have not been vaccinated at a disadvantage. To do otherwise may fall foul of anti-discrimination law conferred under the Equality Act 2010, and employers considering the introduction of similar measures should note this too.

What are the implications of introducing a COVID-status certification?

The Government have said that COVID-status certificates could also be utilised to help businesses return safely to the workplace or ask customers for proof of COVID-status upon entry, provided the business complies with equalities legislation. Various researchers and individuals have asserted that COVID-status certification may help employers discharge their obligation to ensure a safe working environment, in line with their health and safety requirements.

However, as we are still very much in the middle of a vaccine roll-out, with only the 45-year-olds and above age groups receiving or received the vaccine, this still leaves a large number of the population unvaccinated and a greater risk of discrimination arising (for example, in relation to younger people – ie age discrimination or for women of child-bearing age ie. pregnancy or sex discrimination  or for those with a significant medical condition which may prevent them receiving the vaccine due to their pre-existing health vulnerabilities – disability discrimination) . There is a risk of COVID-passports being discriminatory to un-vaccinated workers and customers if they suffer a detriment or disadvantage relating to their protected characteristics. It is likely the discriminatory risk will reduce when the vaccine becomes more widely available, but this is still months down the line.

 Will this negatively impact international travel?

The demand for a return of international travel is high and therefore COVID passports may help accelerate the return to normalised travel. The Government has indicated that certification has already become a prominent feature of international travel, with the UK and many other countries requiring evidence of a negative test a certain number of hours pre-departure and/or on arrival. Implementing a COVID-status certification aims to integrate this more solidly into the UK’s border control and management of transmission and to ensure that UK citizens are not denied of opportunities elsewhere and have a means of demonstrating their COVID-status.

Comment

The Equality and Human Rights Commission have warned that the introduction of vaccine passports could create a “two-tier” society in the UK, with the potential to discriminate against certain groups who are less likely (or less able) to take up the vaccine.

However, the Government is still in the process of exploring the introduction and repercussions of a COVID-status certification system and this will be something for employers to keep under review for any developments and potential legal implications.

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