Can COVID-19 Recovery Confer Privilege in a Reopened Economy?

Although recovery from coronavirus 2019 (COVID-19) may or may not confer immunity or prevent subsequent transmission, the prospect of certifying an immunity-based "passport," or more limited "license" across pandemic restrictions was considered in a pair of essays published in JAMA.

Unlike other immunity certificate programs that are somewhat limited in scope, such as yellow fever vaccination certificate to travel to affected regions, or evidence of being tuberculosis-free to work in healthcare facilities or schools, an immunity certificate program for COVID-19 could have wide-ranging effects, wrote Mark Hall, JD, Wake Forest University School of Law and Medicine, Winston-Salem, NC, and David Studdert, LLB, ScD, Stanford University Schools of Law and Medicine.

"The conditioned 'privileges' could include a greater range of fundamental civil liberties and opportunities," they wrote, "like freedom of association, worship, work, education and travel."

Hall and Studdert anticipated that receiving positive antibody test results, even before scientific evidence and consensus on the clinical implications, would result in behaviors of "self-certification,” with much less accuracy and credibility than if an official program was established.

They advocate, therefore, for immunity certification, and that it is based on fair access to testing, without geographic or economic barriers. They emphasized the importance of avoiding "invidious discrimination,” and that it serve as a necessary means to control disease without imposing undeserved hardship.

Hall and Studdert pointed out that the legality of the program implementation would be based more in disability discrimination law than in constitutional law. They cite recent federal guidance on COVID-19 which allows employers to require workers “to provide a doctor's note certifying fitness to return to work;” and suggest that allowing workers to establish immunity voluntarily could be viewed as a reasonable accommodation for job safety protection.

Even with the potential for being administered unfairly, creating stigma, and possibly producing counterproductive incentives (eg, self-infection), an immunity-based certification program for COVID-19 is ethical, argue Govind Persad, JD, PhD , Sturm College of Law, University of Denver, and Ezekiel Emanuel, MD, PhD, Department of Health Policy, Perelman School of Medicine, Department of Healthcare Management, The Wharton School.

Persad and Emanuel propose the term "license" rather than "passport," however, to suggest something other than an all-or-none program which endorses categorical denial of access to much of society to those without certification. The license, they envision, might apply to specific, high-risk activities such as working in a nursing home; and could permit exceptions and gradations.

They concur with Hall and Studdert on the importance of ensuring that there is no economic barrier to obtaining the license. "The ethical case for immunity-based licenses can be buttressed by working to ensure that licenses do not exacerbate inequality," Persad and Emanuel advised.

Persad and Emanuel acknowledged the concern that immunity licensing might result in stigmatizing those who are not licensed. They argued, however, that the absence of an official program would not avoid that stigmatization.

"In the absence of licensing, businesses and individuals may instead elect to use unregulated evidence of immunity, such as test results, or to use assumptions about immunity or vulnerability that are likely to be arbitrary and biased," Persad and Emanuel warned.