Governor Ducey Signs Executive Order 2021-09 Banning Use of Vaccine Passports in Arizona

By Paul J. Giancola, Brett W. Johnson, and Claudia E. Stedman

On Monday April 19, 2021, Arizona Governor Doug Ducey signed Executive Order 2021-09 banning vaccine passports in Arizona—also known as digital health passports (“DHPs”). The Executive Order (“EO”) prevents local governments, defined as “any state agency, county, city, town or other political subdivision” from compelling Arizonans to disclose their COVID-19 vaccine status as a condition of entry into a facility or business.¹ Likewise, local governments will not be allowed to condition the “receipt of any service, permit, or license on whether an individual has received a COVID-19 vaccine” or not.² Similarly, businesses receiving funds from the State of Arizona cannot require a customer to provide documentation regarding the individual’s COVID-19 vaccination status in order to gain entry or receive a service.

In contrast to local governments, the EO provides that health care institutions and facilities can require documentation of “patients, residents, employees, or visitors” to provide proof of COVID-19 vaccination.³ Further, childcare centers, schools, and universities can also request student vaccination records pursuant to existing state law. The EO also does not prohibit private businesses (who do not receive state funding) from requiring patrons show proof of vaccination for entry or to receive a service.⁴

Governor Ducey’s EO comes on the heels of other states—Texas, Florida, Montana, Idaho, and Utah—passing similar executive orders banning the use of vaccine passports.⁵ The general legal basis for such state action is that public health powers are vested mostly in the states and not the federal government. For this reason, states have much wider latitude than the federal government in mandating vaccines or implementing a vaccine tracking system—such as DHPs.

The concept of DHPs is not new. Schools—both primary and higher education institutions—require proof of immunizations for admitted students. One federal agency, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance stating that employers and some private businesses can require their employees to receive COVID-19 vaccines.⁶ The EEOC guidance could conflict with the EO if a private business receiving state funding wishes to require its employees to receive the COVID-19 vaccines and provide a DHP. In this regard, in a press conference on April 19, 2021, Governor Ducey explained that while Arizonans are strongly encouraged to get the COVID-19 vaccine, Arizona has not and will not mandate vaccinations.

From a federal standpoint, the Biden Administration has indicated that it does not plan to mandate a nationwide vaccine passport.⁷ Even if the White House wanted to mandate a federal DHP, a national system would have to be implemented by Congress. Furthermore, Congress would have to show that a national vaccine passport is necessary to prevent interstate transmission of COVID-19. If Congress could meet this standard, it is likely that such a requirement would be subject to judicial challenge. In view of several recent Supreme Court cases, DHPs would likely be found unconstitutional if such vaccine passports restricted an individual’s ability to attend a religious service or peaceful assembly.

In the coming months, as more Americans receive COVID-19 vaccinations, it seems likely that some private businesses may require documentation of vaccination—especially in crowded or high-traffic venues. One potential hurdle to mandating DHPs is that the current COVID-19 vaccines have only been authorized under Emergency Use Authorization (“EUA”). The EEOC’s guidance does not apply to vaccines under EUA and, historically, vaccine mandates have only gone into effect for fully licensed vaccines, but not those under EUA. Once the FDA fully licenses the COVID-19 vaccines, state and local governments may have more authority to mandate population-wide vaccination. However, ethical and technical considerations will persist as COVID-19 vaccines have not been distributed to all populations evenly and not every person who receives a COVID-19 vaccine or vaccine sequence may have the ability to provide proper documentation of their vaccination status.