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Are Covid-19 Vaccine Passports Legal?

“Vaccine passports,” or Digital Health Passes (DHPs), have been lauded by many business leaders as way to “get back to normal.” Polling shows there is strong public support for employers requiring Covid-19 vaccination for in-person work.

How do state and federal powers intersect on implementing DHPs? And can private companies require proof of vaccination as a condition of returning to work, or even as a requirement for customers?.

In the U.S., public health powers reside primarily in the states, and not the federal government. A national system would have to be implemented by congressional action, which seems unlikely. Congress, moreover, would have to demonstrate that DHPs are needed to prevent interstate transmission of Covid-19. If the DHP restricted constitutional rights, such as attending a religious service or a public demonstration, the Supreme Court could strike it down. The Supreme Court’s new conservative majority has already shown it is prepared to aggressively protect religious freedom, even in a public health emergency.

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