Earlier this month, New York became the first major US city to announce it would mandate proof-of-vaccination to access indoor public spaces. Under the “Key to NYC” vaccination mandate, people wanting to go to New York restaurants, bars, gyms, movie theaters, and concerts must show proof of at least one dose of COVID-19 vaccine. The goal is to both limit viral spread and entice people to get vaccinated. Enforcement begins in September.
Other US cities have begun to announce similar plans, including New Orleans, Los Angeles, and San Francisco.
Vaccine mandates in high-risk settings with controlled access, such as hospitals and long-term care homes, elementary schools, and day-care centers are valuable public health measures. Planned proof-of-vaccination systems that aim to restrict activities of daily living are not so straightforward.
As three women whose shared expertise spans biomedical research, ethics, and law, we are concerned about the scientific, ethical, and practical risks associated with the broad use of COVID-19 vaccine credential programs, including racial discrimination and inequity at the hands of others. These serious risks to public health and society cannot be overlooked.
First, the science. With the Delta variant, recent data suggest that one dose of a two-dose vaccine regime is only 30 percent effective at preventing COVID-19. This means that proof of partial vaccination is essentially irrelevant regarding the goal of preventing community spread. Moreover, breakthrough infections can occur among the fully vaccinated. To be sure, vaccinated individuals are still highly protected from severe disease and death from COVID-19, but vaccination doesn’t fully prevent them from spreading the virus to others. Masking and physical distancing are still needed when the fully vaccinated come together in enclosed public spaces.
Since the beginning of the pandemic, public health measures have aimed to protect those most vulnerable to the disease. With rising vaccination rates for older individuals and individuals with preexisting medical conditions, it’s those too young to be vaccinated or those who cannot be vaccinated because of their health status who now require protection. Mask mandates irrespective of vaccine status are part of an effective response. And when community spread is occurring, proof of a negative COVID-19 test may be a more legitimate public health measure than proof-of-vaccination. Investment in large-scale rapid testing infrastructure could allow for easy proof of a negative COVID test for both the vaccinated and unvaccinated.
Second, the ethics. Risks to personal privacy and freedom are serious concerns, but there are times that public health needs justify intervention. Our worry lies in the potential for vaccine credentialing programs to codify existing inequity and create entirely new divisions within society.
Providing proof of vaccination on demand could create an additional means by which to exclude already marginalized individuals from society. Structural inequities in health care, employment, and housing have already put Black, Latino, Indigenous, and certain Asian American groups at higher risk of death or hospitalization from COVID-19. And because of past and current practices of discrimination in the health care system, fewer Black and Hispanic Americans have received a COVID-19 vaccine as compared with their white counterparts. For some communities of color, layering vaccination requirements for social settings on top of existing structural inequities is like adding salt to an already deep and inflamed wound.
Furthermore, who will be charged with policing this system? And who is more likely to be policed for potential violations? New York plans to fine businesses that don’t enforce the vaccine requirement. To avoid fines, businesses will need to introduce mechanisms to verify proof of vaccination. As it could be onerous and cost-prohibitive in many settings to screen every patron, some businesses might reasonably introduce random checks. If this should be the case, there is reason to fear that certain people, particularly people of color, will be scrutinized more closely than others. New York City data on the issuance of social distancing violations that demonstrate disproportionate targeting of Black New Yorkers provides a case in point.
We are also concerned about who is authorized to validate vaccine credentials. If front-line employees are responsible to check credentials, there is the risk of bias and discrimination on the part of workers on who they target. There is also the risk of verbal or other abuse directed at workers from potential patrons denied access.
Lastly, money spent on the design and implementation of a scientifically and ethically flawed program is money that isn’t available for other measures that could more effectively promote public health such as purchasing and distributing free masks and hand sanitizer, funding paid time off from work for COVID-related testing, vaccination, and illness, as well as financing community-led vaccination efforts.
Broad mandates for proof of vaccination create a false sense of security while also layering on new societal risks. If city governments are truly motivated to protect the health and well-being of their residents, vaccination mandates must be weighed carefully.
Seema Mohapatra is a visiting professor of Law at SMU Dedman School of Law. Françoise Baylis is university research professor at Dalhousie University, Halifax, Nova Scotia, and the author of “Altered Inheritance: CRISPR and the Ethics of Human Genome Editing.” Natalie Kofler is senior advisor for the Scientific Citizenship Initiative at Harvard Medical School, founder of Editing Nature, and a member of the Justice, Health and Democracy Impact Initiative.