Adm. Giroir, the COVID-19 testing czar, has stated that “tens of millions” of antibody tests would be in the pipeline, soon; but they come with many uncertainties about what that will mean. There is no clear evidence that having antibodies to COVID-19 will protect you from getting the disease again, and to the extent we can believe it, reports from China were that people were being reinfected after recovering from the viral infection. There are several strains of COVID-19 that could complicate the antibody tests, and the level of antibodies necessary to confer immunity is another measure we do not have. We are relying on decades of studies and the very scientific underpinning for vaccines that tell us that antibodies from a COVID-19 infection should make us immune to COVID-19. Even that basic medical principle is challenged by COVID-19.
The concept of “herd immunity” is at least part of the recovery plan for Sweden, where they believe more than 30% of the population has antibodies to COVID-19, creating an antibody environment that would slow transmission. But some experts believe it takes closer to 60% of the population with immunity to achieve the herd immunity effect. We, in the U.S., are far from this standard, today.
So assuming we answer these scientific questions, and certificates of immunity, an idea discussed in April by the U.S. public health leadership are considered? What are the legal issues?
The first reaction to certificates of immunity has been to reference the idea as a dystopian plot for a novel. Labeling and stigmatization of individuals is the fear. The second, and far more damaging reference, was to use the term “suspend individual rights” in order to reopen America. We do not, let me repeat, we do not, suspend individual rights, ever, under our Constitution. For those of you who are planning on government collapse, you may be disappointed because we have a well-practiced, continuity of government (COG) plan in place (and now ready) should government be even slightly diminished in function.
We also have a prohibition against military governance, the Posse Comitatus Act, passed after reconstruction following the U.S. Civil War, because we saw it was a very bad idea to have a military-civilian law enforcement relationship. So any “suspension” of individual rights is clearly prohibited by law.
The U.S. Constitution is still our guaranteed protection against tyranny. The Bill of Rights ensures, without suspension, how those rights are balanced against the interests of the American society and its protection against invasion from outside the nation and crime, public health and property protection, from inside the country.
So how do we balance the need to reopen the economy and allow individuals to pursue work and life? A certificate of immunity is one idea to safely govern the return to work, school and play, but it must not burden individual rights and protections more than it benefits and serves the needs of the American people – in Constitutional law language, it is the compelling government interest in reopening the economy and protecting public health that must outweigh the burden on individual rights. The balance is making sure it is worth the burden placed on individual protection and rights.
Now let us examine the individual rights that would be “burdened” by a certificate of immunity, again, assuming we find a reliable diagnostic test on which to base such a certification.
First, the U.S. Supreme Court has opined that the U.S. Constitution guarantees the right of privacy. This is found not in the word “privacy” anywhere in the text of the Constitution, but collectively found from the 3rd, 4th, 5th, 10th and 15th Amendments of the U.S. Constitution. That is settled law. That means your health information is a privacy interest of every individual, and Congress has ensured it is protected through the HIPAA protection that is afforded patients of healthcare providers. However, HIPAA does provide for the revealing of that information to public health authorities in a public health emergency, which is considered a burden that is not too great on individual privacy rights, in that narrow circumstance of a public health emergency. As of this writing, there is a declared national public health emergency and all fifty states have issued public health emergency proclamations or the equivalent. Your privacy right would weigh less in the balance of these set of facts and circumstances.
Second, equal rights for every individual is guaranteed by the 14th Amendment, and discrimination against an immutable characteristic is prohibited – meaning something you cannot change, like gender, race, etc. Immunity is not an immutable characteristic and can even be changed with a vaccination. That said, individuals with immuno-compromised conditions and other risk factors that would make attempts at gaining immunity from the disease or a vaccination prohibitive, warrant special consideration. Part of a certificate of immunity policy would have to plan for how this class of individuals might return to work without discrimination based on these characteristics that they cannot change.
Third, workplace discrimination is prohibited by genetic information, and there is some indication that genetic information could be correlated with immunity for a more reliable immunity determination. Workplace discrimination based on genetics is prohibited by federal law, the Genetic Information and Nondiscrimination Act (GINA) of 2008. Congress would have to adopt an amendment to GINA to allow the use of genetic information as part of a certificate of immunity. However, workplace discrimination has been held to be likely enough for a federal district court to issue an injunction against a hospital where a group of nurses refused a smallpox vaccination as a condition of continuing in their jobs in the hospital in Washington State. This was a federal district court order, but it is an indication of how the law might be applied, if tested, in other courts, with certificates of immunity as a condition to return to work. Remember, this is also a balancing test, and this conflict occurred almost one year after the passage of the Smallpox Protection Act in response to the threat posed by the anthrax attacks of 2001. That law called for taking the precautionary step of vaccinating frontline workers with the smallpox vaccine. In 2003, the threat was still very real, but by 2004, the threat had largely passed in terms of public perception and the balancing of the risk of the smallpox vaccine against the likelihood of a smallpox attack (the compelling government interest being to protect the nation) no longer seemed balanced. For now, the balance of a certificate of immunity for COVID-19 weighed against the need to safely return the American workforce to work may be a much more acceptable balance. As circumstances and conditions change with regard to COVID-19, so too, would the balancing test.
Fourth, safety in the workplace where personal protective equipment is required by the employer, as a condition of employment, can be bolstered by the employer relying on state and federal recommendations and protocols.
Finally, how different is a certificate of immunity from a vaccination record that is required to attend public school and public universities? Requiring vaccinations for public school has been found to be consistent with our Constitution where exceptions can be made for those unable to have vaccinations. This policy is driven by the susceptibility of children to these childhood diseases balanced by its narrow application to public school attendance and the compelling government interest of preserving the lives of many more children by using vaccinations.
The unintended consequences of such a policy must also be considered. Such a policy might drive those who vitally need to return to work to sustain themselves and their families to infect themselves to obtain immunity, perhaps with deadly consequences. In fact, just the mention of certificates of immunity may have triggered some individuals to get a “head start” on the policy. (We already have a network of “chicken pox parties” in Facebook groups who plan intentional infections of the childhood disease for their children with the dangerous and perverse logic that it will help them. It is not an unreasonable assumption that the same network might be developed for COVID-19.)
Will such a policy create a stigmatized group of individuals? Not if we plan accommodations in the policy for those who are unable to obtain immunity and thus the certificates of immunity. Even without certificates of immunity, there are already classes of individuals that should not return to work where the risk of infection is high, like the risk group of 65 and older. There may be stigmatization against young adults who are largely identified as the population that can spread the disease with no symptoms, potentially making them a stigmatized group.
The balance of the government interest against the burden on individuals having to prove such immunity with certificates to return to work, school and play could very well be constitutionally balanced, now, in these times and circumstances. It does not mean this will always be the balance, because when the threat subsides, and the burden becomes unwarranted by the compelling government interest to keep us safe from COVID-19, certificates of immunity will no longer be warranted.
Finally, despite the increasing use of Executive Orders when Congress will not act to carry out the policies of a duly elected President (exercised by Presidents of both political parties), certificates of immunity would be considered a “rulemaking” meaning that it would have a legal impact on individuals. At a minimum, such a policy would require an authorizing statute giving broad authority to make such a rule, but it would also require notice and comment for 60 days, which could be repeated until the rule/law is final. In an emergency, the certificates of immunity could be instituted, while a rulemaking is underway. Rather than the Executive Branch risking a judicial review of the legality of a certificate of immunity requirement, a certificate of immunity could be made voluntary for employees and employers, but that would leave employers who demand the certificates as an absolute condition of employment exposed to litigation without the authority of a federal requirement as a per se defense.
Certificates of immunity would create two general groups: those who can work, study and play and those who still have access to these activities in a more protected way. If we do not have certificates of immunity, the likelihood of stigmatizing groups known to be vulnerable (older adults), and groups known to be spreaders without symptoms (younger adults) is a certainty, which will raise Constitutional issues to resolve.
So, if science can give us a reliable test with predictability, a certificate of immunity can be managed with no suspension of the Constitution or individual rights. The Constitution will operate the way it was designed, with principles of freedom, democracy and dignity and protected rights for the individual.
 42 U.S.C. 2000ff-1,2 at https://www.law.cornell.edu/uscode/text/42/2000ff-1.
 Pub.L. 110–233, 122 Stat. 881 (May 21, 2008).
 Washington State Nurses Assoc. v. Virginia Mason Medical Center, (W.D. Wash., Oct 1, 2004).
 Jacobson v. Massachusetts, 197 U.S. 11 (1905) also citing several state cases that upheld the authority to require school vaccinations.