University of Pennsylvania's Eric Feldman on the legality of vaccine passports

University of Pennsylvania's Eric Feldman joined Yahoo Finance Live to break down the legality of vaccine passports.

Video transcript

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SEANA SMITH: Vaccine passport is an idea that's been thrown around, supported. By some of the bigger players in the travel industry. But basically, it could get you into venues, could get you into restaurants, various countries-- the list goes on-- anywhere that requires proof of vaccination. But of course, the big questions being raised-- is the legality of it. And we want to discuss that with Professor Eric Feldman. He's at University of Pennsylvania's Carey Law School.

And professor, great to see you. When you-- when we talk about the legality of it, I think a lot of people who are against it say you simply can't require either a customer of your business or one of your employees to get the vaccine. Tell us what you think.

ERIC FELDMAN: I think it depends upon who the "you" is in that story. It seems fairly clear that some of the "yous" can certainly require people to show that they've been vaccinated. Private businesses, for example, can both, under the EEOC, the Equal Employment Opportunity Commission's guidance, so long as they comply with state and federal law, require that employees get vaccinated.

And private businesses can put all sorts of restrictions on who they do and don't let into their venues. And that would be true for your local bar and cafe, as well as Yankee Stadium, for example, or the US Open or other sorts of venues. So my guess is, in most cases, private venues and public venues, depending upon which ones they are, will be on fairly strong legal ground if they're going to require people to show that they've been vaccinated.

- And professor, of course, a number of states have come out strongly against these vaccine passports. But to give one example of a state that has issued something like that, here in New York, we have the Excelsior Pass, which provides either a record of vaccination or proof of a negative test.

And I'm wondering-- of course, vaccine passports, in that case, could be a little bit of a misnomer if a negative test also suffices in order to permit entry into a venue or to some other live location. And I'm wondering-- that is something that could potentially be on even firmer legal grounds since it wouldn't just be about the vaccines. It could also be about a negative test.

ERIC FELDMAN: Right. Well, the vaccine passport, in general, I think is a misnomer. I think the term started out describing the sorts of requirements that countries might have for citizens of other countries or even their own citizens to cross the borders into the country. That fits with what we think of as passports, which, after all, are formal government documents that impose certain obligations and grant certain rights to the holder.

A vaccine passport, so-called, is really nothing more than a certification or a card that indicates which a-- vaccine a particular person has had. In this case, the case of COVID-19, it would simply show that the individual had been vaccinated against COVID with the appropriate dosage to have cleared the immunity hurdles.

I think you're right. There are some places that are suggesting, well, gee, either show a vaccine passport or vaccine certification or show that you've been tested and tested negative recently. But I think we know that the vaccination is likely to be a significantly more robust form of protection, both for the individual and for others. One never knows whether one's negative test on Tuesday is going to be a negative test on Wednesday. And that depends upon, arguably, one's exposure on the previous Thursday, Friday, or Saturday.

So my guess is moving forward, particularly as the science firms up and makes clear, hopefully, that those who are vaccinated are neither at much risk or any risk for either getting sick with COVID-19 or transmitting COVID-19, it would seem a far second choice to simply say, well, if you haven't been vaccinated, just show us that you've tested negative. I don't think that's likely to be the two options. I think the option is likely to be show us that you've been vaccinated.

SEANA SMITH: Professor, and then, of course, that brings up the question of the ways to go about enforcing this. How are you looking at that issue?

ERIC FELDMAN: I think if we look at how other aspects of the COVID-19 story have been enforced, it may not be that difficult. For example, I'm at the University of Pennsylvania. I've been teaching in person. And therefore, I'm required, like my students, to get tested every week. In order to enter the university buildings, I need to fill out a computer pass on my phone that shows I've-- self-reporting no symptoms, no contact, no exposure, and I've been tested. If I don't do that, my IDs card doesn't let me into the building.

It would seem to me that private businesses-- if I have a restaurant and I want to be sure that everyone entering is vaccinated, I'll have a QR code reader at my front desk. And people will have to flash the card-- flash the code or show me a card or indicate in some other way that is serving as proof to me that that person's been vaccinated.

It's not without problems. I think we know already people are falsifying information about having been vaccinated. And there's also not the appropriate uniformity that we need in terms of the vaccine passports so that there's different companies and different agencies issuing them. And that creates some complications. But I think enforcement overall is not likely to be a tremendous barrier.

SEANA SMITH: Professor Eric Feldman, University of Pennsylvania's Carey Law School, thanks so much for joining us here today.