Less than a year after the first diagnosed COVID-19 case, Israel began a rapid COVID-19 vaccination campaign. In the first three months of its COVID-19 vaccination rollout, the country had the highest vaccination rate globallyFootnote 1; 56.7% of Israel’s population had received two vaccine dosesFootnote 2 as of late May 2021. According to recent data, vaccines protect individuals and reduce viral load, apparently reducing transmission both for the original and the ensuing variants and thus supplying the entire population with indirect protection.Footnote 3
From its inception, Israel’s vaccination campaign yielded heated discussions on how to promote vaccination in order to protect the population, return to “normal” life, ease restrictions and restart the economy. The Israeli Ministry of Health, together with professional organisations, local municipalities and civil society, launched promotion programmes while also trying to address and counter fake news. As vaccination rates in Israel began to decline, the Israeli government adopted in February 2021 a model using a proof-of-vaccine document (“Green Pass”) that will alleviate some of the limitations placed on the general population for vaccinated people.Footnote 4 In the months that followed, Israel experienced a sharp reduction in morbidity and mortality. As of 1 June 2021, the Israeli government revoked the “Green Pass” regime.Footnote 5
Nonetheless, this model raises multiple practical, legal and ethical concerns regarding possible discrimination and increasing societal divisions. Questions also arise with regard to the model’s purposes and its contribution to better combatting the pandemic. In light of Israel’s unique characteristics and the high percentage of vaccinated people, its “Green Pass” policy represents an outlier among other planned certificates and could offer a particularly interesting case study. This article addresses some relevant questions, bringing together human rights, equity and public health perspectives. This article reviews Israel’s legislation and implementation of the “Green Pass” policy and briefly delineates the relevant legal frameworks. Exploring two case studies – labour rights and the right to privacy – this article demonstrates the broader legal and public implications of this policy. We discuss the adequate balance between public health considerations and human rights protections and offer public health considerations for long-term vaccination promotion policies beyond the “Green Pass” model.
II. Israel’s “Green Pass” model: emerging questions
The “Green Pass” policy was anchored in Israel’s legislation in February 2021 as an amendment to a temporary provision issued under its Coronavirus Law.Footnote 6 Under the “Green pass” regime, a digital certificate is issued to those who have been fully vaccinatedFootnote 7 or have recovered from COVID-19, granting them the ability to attend certain leisure, sports and cultural activities. Holders of a “Green Pass” were allowed access to hotels, theatres, indoor dining in restaurants and cultural events. Universities further resumed partial on-site classes on the basis of the “Green Pass”, with continued remote participation for those who did not hold a “Green Pass”. Nonetheless, the expiration of the respective provision under which “Green Pass” requirements were applied in the universities had left the issue unclear.Footnote 8
The “Green Pass” policy introduced alternatives for non-vaccinated individuals, yet left considerable unresolved confusion. In most situations where a “Green Pass” was required, such as sport or cultural events, the provision offers on-the-spot COVID-19 antigen tests for those who did not issue a “Green Pass”.Footnote 9 In practice, however, on-the-spot testing often remained inaccessible, both physically and financially. Additionally, individuals who are medically prevented from being vaccinatedFootnote 10 were permitted to present a negative COVID-19 test conducted up to seventy-two hours earlier instead of a “Green Pass”.
The specific details of the “Green Pass” provision were subjected to frequent legislative changes, reflecting the dynamic nature of the COVID-19 response, and have been gradually eased.Footnote 11 The Israeli government lifted most domestic COVID-19 restrictions as of June 2021, removing all “Green Pass” requirements, yet discussions on reimplementing the “Green Pass” had soon resumed.Footnote 12
Since the inception of the “Green Pass” policy, decision-makers have been unclear about the exact purposes that the “Green Pass” policy was meant to serve. While some highlighted the protection of individuals’ health and public health to minimise restrictions and facilitate a safer reopening of economic and social activities, others have argued that the “Green Pass” policy is also intended to encourage vaccination and overcome vaccine hesitancy.Footnote 13 Specific aspects of the models were brought before Israel’s Supreme Court, from imposing the “Green Pass” requirement on Israel’s public memorial ceremoniesFootnote 14 to the decision to issue the “Green Pass” only in Hebrew and English, without including the Arabic language.Footnote 15 More broadly, the “Green Pass” model raises numerous legal, ethical and public health-related questions.
The opponents of the model view it as a site of irrelevant differentiation, de facto discriminating against non-vaccinated individuals while also curtailing numerous basic human rights. More broadly, the public debate surrounding the “Green Pass” model ostensibly posits the protection of the human rights of non-vaccinated individuals on the one hand and the interest of protecting public health or individuals’ health on the other. This equation nonetheless omits the human rights violations inherently caused by the COVID-19 pandemic. The “Green Pass” policy cannot be examined in isolation from the overall response to the COVID-19 pandemic, characterised by widespread limitations on different human rights: from curfews and closures to closures of educational institutions and commercial activities, the necessity of which was often contested.Footnote 16 Israel also implemented other restrictive measures that were almost unprecedented globally.Footnote 17
Additionally, ethicists warn that “Green Pass” models might further entrench existing marginalisation and inequalities. In Israel, large groups face impassable bureaucratic barriers to being issued a “Green Pass” even after being vaccinated, including migrant workers, asylum seekers and Israelis who were not vaccinated in Israel. Additionally, lower vaccination rates have been particularly recorded among minority communitiesFootnote 18 and communities of lower socioeconomic status,Footnote 19 primarily the Bedouin community in the south of Israel.
Even more so, only a small number of Palestinians in the Occupied Palestinian Territory (OPT) will have access to vaccines,Footnote 20 and Palestinians in the OPT are ineligible for a “Green Pass”. The World Health Organization (WHO) dataFootnote 21 reveal a higher proportion of death among reported COVID-19 patients (case fatality rate, or CFR) in the OPT than in Israel. Nonetheless, Israel launched only a limited vaccination campaign that focused on the tens of thousands of Palestinians who regularly enter Israel for work and allocated a few thousand additional doses mainly to Palestinian health workers from the OPT.Footnote 22 This policy, recently brought before Israel’s Supreme Court,Footnote 23 is difficult to reconcile with Israel’s legal obligations in the OPT under international law.Footnote 24
III. Assessing the “Green Pass” model: legal frameworks
To assess the legality of the measures taken, Israeli law offers several constitutional benchmarks to examine the relationships between the chosen measure and its purpose.Footnote 25 Any legal measure that restricts rights must be anchored in or issued by law and aim to serve a proper and substantial purpose. Such an arrangement must be logically constructed or rationally connected in order to fulfil this objective and must adhere to a necessity and least infringement standard. Any chosen measure must be the least drastic alternative and must not curtail individuals’ rights or interests beyond what is necessary. Finally, the advantage of the proper purpose achieved through the selected arrangement must be deemed proportionate after carefully balancing it against any harms caused to individuals’ rights or interests. Moreover, in the authors’ view, a periodic examination is required to ensure that these standards are maintained over time, particularly given the constantly changing reality of the pandemic, as was done recently in Israel with its decision to eliminate the “Green Pass”.
Within the context of the “Green Pass” policy, one should first assess the public justification of such measures. Protecting public health can certainly be viewed as an adequate social purpose. However, suppose that this purpose underlies the “Green Pass” arrangement. In that case, only interactions and activities of increased risk to public health could be perceived as having a rational connection to this stated purpose.
Additionally, while assessing the proportionally of the “Green Pass” and similar models, it is important to look beyond the possible violations related to the rights of non-vaccinated individuals. As public health measures taken in response to COVID-19 inevitably cause human rights violations, controlling and limiting the spread of the pandemic would also diminish these violations. The closure of schools due to COVID-19 might be deemed necessary and proportionate, for instance. Yet such closures will prevent children from fully fulfilling their right to education and will provide them with a less than ideal educational experience. Therefore, the potential harms mitigated by COVID-19 vaccination, beyond health issues alone, should be incorporated into our analysis of the proportionate balance. Insofar as the “Green Pass” requirement will be utilised to minimise risks of COVID-19 infections, thus contributing to the greater fulfilment of various rights, these broader advantages must be weighed as well.
This question sheds light on the more complex purpose of encouraging immunisation. In isolation from protecting public health, encouraging vaccination is a highly problematic purpose: can the rights of non-vaccinated individuals be violated and curtailed not because they pose a risk to others’ health, but as a means to alter their choice not to be vaccinated for various reasons? Additionally, if the “Green Pass” is used to incentivise immunisation, although officially denied by the Ministry of Health in public, such purpose could justify much broader infringements upon the rights of non-vaccinated individuals.
Moreover, it would be vital to deploy a detailed and specific lens; limitations or privileges stemming from COVID-19 vaccination might be legitimate in specific contexts but illegal in others. It is imperative not to demand a vaccination certificate merely because of its availability, but to ensure it is needed within particular contexts. At the same time, the exhaustion of less restrictive alternatives should be continuously examined, from remote working to requesting COVID-19 testing.
IV. Broader implications of the “Green Pass” model: between under-regulation and over-permissive regulation
The legal, social, economic and ethical impacts of the “Green Pass” policy go beyond the narrow scope of its enacted legal arrangement or specific temporal phase. When enacted, the “Green Pass” requirements were implemented on a limited number of public activities. However, this policy has been broadened, de jure and de facto, leading to much more significant rights violations. To illustrate these broader consequences, as well as the complex balance between a nexus of competing rights and interests, we will now examine two case studies: Israel’s labour rights and the (de)protection of the right to privacy.
1. Labour rights and employer-led “Green Pass” initiatives
The protection of labour rights has been a central issue throughout the pandemic.Footnote 26 Israel has lacked state-wide regulations or collective agreements that set restrictions on the labour market for unvaccinated workers.Footnote 27 In other words, the Israeli “Green Pass” did not legally apply to the labour market. However, the distinction between vaccinated and non-vaccinated employees has been de facto implemented via employers’ self-regulation. The legal vacuum created by the lack of regulation provided employers with the prerogative to take measures within their establishments as they saw fit. Such a prerogative is extremely problematic, increasing private governance in workplaces without providing any legal rules that protect employees.Footnote 28 Numerous employers used such a prerogative to introduce entry restrictions, with some even declaring that the employment of unvaccinated workers would be terminated.Footnote 29
Such steps led to heated debates in Israel. Given the lack of clarity, various position papers and legal opinions were written.Footnote 30 In all, three main points of consideration were raised: the protection of public health; the centrality of work for the livelihoods of individuals (the basic right to freedom of occupation, right to work and human dignity); and, lastly, employers’ right to property and managerial prerogative and their responsibility for sustaining a protected and healthy work environment for employees, customers and others. Each paper proposed a different balance between these considerations, reaching various conclusions. Within this state of chaos and following the measures taken by employers, petitions were submitted to the labour courts, and three initial judgments were given on this issue.Footnote 31
In the first case, Avishay v Cochav Yair-Zur Igal Local Council,Footnote 32 the applicant – an assistant in a kindergarten for children with special needs – refused to be vaccinated or to be tested weekly, as was required by the local council. In an interim prima facie decision, the Regional Labour Court considered the legal issue to be whether the council could restrict the access of unvaccinated persons to its facilities rather than whether it could impose mandatory vaccination. The Court recognised that the conditions set by the council had infringed upon the applicant’s rights to privacy, human dignity, autonomy and freedom of occupation, but ultimately found that the council’s obligation to preserve the rights to health and life of the children, their parents and the teachers allowed it to require either vaccination or a negative COVID-19 test once a week.Footnote 33
A similar decision was given in the case of Ori Chen v Netanya,Footnote 34 in which a social worker refused to be vaccinated or tested every seventy-two hours. When balancing between her rights and the employer’s duty to protect the health of its employees and that of the population coming into contact with the worker, the Court decided in an interim decision that the employer’s decision to put the social worker on paid leave was proportionate. The Court also stressed the municipalities’ specific obligations to secure public health, according to the Municipality Act. However, the Court decided that because the applicant had already used all of her accrued vacation days, the employer would bear her salary costs until a final decision was given in the case.
In the third case, Fikstein v Shufersal,Footnote 35 the employer, a large supermarket chain, sent notice that all employees must present a “Green Pass” or a negative COVID-19 test taken within the previous seventy-two hours to enter the workplace. The employer did so after receiving the agreement of the trade union representing its employees. The applicant, a cashier who had suffered from severe allergic reactions in the past, refused to comply with the request and asked to be redeployed, for the supermarket to use a less intrusive testing process or for her to work under the social distancing conditions that were in place before. In an interim decision, the Court found that, despite the employee’s rights to dignity, equality, freedom of occupation and personal belief, the supermarket chain’s obligation to provide a safe and healthy environment for its employees and clients allowed it to send her on leave. The employer cannot enforce vaccination, yet has the right to act, when it is justified, against an unvaccinated employee refusing to comply with the requirement to be tested every seventy-two hours.
While it seems as if the labour courts struck a balance between labour rights, public health and the employers’ rights and responsibilities in a way that enabled restrictions on unvaccinated workers, it did so in a rather limited way. The labour courts examined whether there were alternative measures to achieve the goal of protecting public health, such as presenting a negative COVID-19 test every seventy-two hours. Yet the courts turned to more obvious solutions proposed by the “Green Pass” regime and did not assess other less intrusive measures such as mandatory masks and social distancing policies or enabling remote working, even for a temporary and short period. Moreover, the courts did not assess the legitimacy of distinguishing between vaccinated and unvaccinated workers in any of these cases.
This is even though there can be justifications for distinguishing labour from other spheres in which the “Green Pass” formally applied. For example, restrictions on work during a severe economic and social crisis can be argued to be more substantial than limiting entry into cultural events. Moreover, distinctions among vaccinated and unvaccinated workers should be made only if relevant to the job performed; a kindergarten teacher can be distinguished from a university lecturer because physical distancing is impractical in the first case but possible in the latter. In addition, it can be said that due to the importance of work for the livelihoods of individuals, it can be required that employers examine whether they have at their disposal alternative, less drastic means and can consider adjustments and accommodations towards workers.
More broadly, it is questionable whether labour law courts could bring national-level and complex social, economic and medical concerns into consideration in the specific cases coming before them. This case study thus demonstrates the difficulties stemming from the absence of state-wide labour market regulations. At the very least, legislation could have offered greater clarity by defining a legitimate purpose in the context of vaccination, when vaccination is relevant to employment, and what other proportional measures could be adopted.
2. The right to privacy and usage of “Green Pass” data
In contrast, the right to privacy – an essential yet often overlooked aspect of vaccination programmes – has gained legislative attention within Israel’s “Green Pass” regime. In a highly expedited legislative process,Footnote 36 Israel has permitted the disclosure of the identities and contact information of non-vaccinated citizens, without their consent, to municipal authorities and the Ministries of Education and Labour to enable these bodies to encourage vaccination. This temporary measure was soon challenged before Israel’s Supreme Court, which temporarily halted the implementation of this amendment.Footnote 37 The amendment expired in late May 2021 without being implemented, and the government later informed the court that it would not be renewed.
Immunisation information, like other aspects of medical information, is integral to the right to privacy. The right to privacy enjoys widespread protection under international human rights law, enshrined in international conventionsFootnote 38 and regional mechanisms.Footnote 39 In Israel, the right to privacy is constitutionally anchored under Israel’s Basic Laws,Footnote 40 with specific legislation affording further protection to medical information.Footnote 41
The recent Israeli amendment directly infringes on the core of the right to privacy, leaving Israeli citizens – vaccinated and non-vaccinated alike – with sensitive medical information potentially exposed to non-medical authorities without their consent. Furthermore, the disclosure of information might lead to unfavourable social responses towards non-vaccinated individuals. Under the guise of a pandemic, the amendment could legitimise future violations of the right to privacy and quickly create a slippery slope. As hundreds of local councils were authorised to request vaccination information, there is a real risk of indirect privacy violations due to information leakage.
In the realm of public health, vaccination information is part of medical confidentiality. Therefore, the transfer of information may seriously infringe upon patients’ rights, undermine their trust and violate the ethical commitment of medical staff to confidentiality. In doing so, the amendment thus impairs the necessary framework for providing medical care and perhaps might even contribute to vaccine hesitancy. In its proposed interim guidance,Footnote 42 the WHO underscores the importance of respecting individuals’ privacy with regard to vaccination records, urging states to ensure that individuals will have complete control over the disclosure of such information.
Consequently, there were serious doubts that the amendment could be deemed justifiable, necessary and rationally connected to its stated purpose of encouraging COVID-19 vaccination, as well as whether less abusive measures have been exhausted.
Broadly, privacy is critical to advancing vaccination campaigns. Privacy concerns fuelled the vocal opposition to “Green Pass” models in several countries. Critics are rightfully concerned about possible future ramifications or the possible expansion of “health passports” that will likely impact on already-marginalised communities and individuals. Therefore, privacy must be protected with the utmost care in all aspects of the COVID-19 response, from medical research and care to immunisation databases.
Even more so, this amendment exemplifies some of the rights curtailed when “Green Pass” policies are aimed at incentivising vaccination rather than the narrower purpose of protecting individuals’ health. Immunisation incentivisation is a purpose inherently yielding a wider range of human rights violations of non-vaccinated and vaccinated individuals alike.
V. Beyond the “Green Pass”: long-term vaccination promotion
As illustrated by the case studies reviewed, Israel’s “Green Pass” policy simultaneously demonstrates the difficulties of under-regulation and of over-permissive regulation. In light of the broad impacts of “the immunisation passport” policy, the importance of state-wide legislation cannot be overstated. Principally, the legislator is better positioned to consider issues of substantive equality and the scientific risks of non-vaccination than ad hoc juridical decisions or sporadic private-sector initiatives. At the same time, such legislation must adhere to legitimate purpose, relevance and proportionality principles and refrain from over-restricting rights.
As a way of concluding, we propose taking a step back from the specific discussion of Israel’s “Green Pass” model and instead looking at the broader purposes it was meant to serve. We argue that, in certain situations, protecting public health and the health of individuals can indeed be viewed as an adequate purpose that might necessitate a policy that recognises COVID-19 immunisation as a relevant factor. Protecting health is a proper purpose, particularly as minimising the pandemic will ameliorate the human rights violations that stem from the COVID-19 response, enable individuals to return to their daily lives and enhance economic activity. However, any privileges or restrictions guided by one’s COVID-19 immunisation status must be designed with the utmost care to prevent a disproportionate violation of the human rights of non-vaccinated individuals and the public at large.Footnote 43
Nonetheless, Israel’s “Green Pass” was enacted without clearly communicating its purposes. Insofar as the “Green Pass” will be tailored and used towards a broader purpose of incentivising immunisation, it will raise far more legal difficulties, as demonstrated in the case studies we have offered. There are inherent tensions and contradictions between the importance of vaccination for minimising the COVID-19 pandemic and its related human rights violations, to the legal difficulties regarding vaccination encouragement schemes. But these tensions could perhaps be better resolved by employing a public health perspective. Completing the circle, we return to the initial question of how to protect public health by advancing vaccination.
The WHO declared vaccine hesitancy as one of the ten threats to global health in 2019.Footnote 44 Successful public health policy, such as vaccination, relies on public compliance and adherence.Footnote 45 There are various approaches public health professionals can use to achieve adherence – from non-coercive incentives, through transparency, to a greater emphasis on equity.
First, vaccination encouragement could include financial incentives, food vouchers and tax benefits; some are better suited than others to a vision of social epidemiology and justice-informed public health. Nonetheless, there is a fine line between providing incentives and infringing upon one’s autonomy related to medical care. In this context, Israel’s “Green Pass” cannot be viewed as a mere incentivisation scheme as it entails indirect coercive components. Furthermore, the discipline of public health prioritises investments in long-term policies and initiatives because they have long-term repercussions or lock behaviour mechanisms on specific desired trajectories.Footnote 46 The “Green Pass” might be a helpful short-term tool, but it has yet to be empirically proven to foster long-term public trust and adherence.
Rather than direct incentives, the WHO suggests that increasing knowledge and awareness surrounding vaccination and directly targeting unvaccinated populations has the most significant positive effects on vaccination uptake and long-term psychological changes.Footnote 47 As the field of public health prioritises long-term adherence over short-term gains,Footnote 48 community outreach and efforts to identify and address specific obstacles to vaccination, focusing on marginalised communities, could be particularly significant.
Second, transparency in decision-making processes is a crucial strategy for tackling the pandemic and raising vaccination rates. In light of the uncertainties surrounding pandemic outbreaks, transparency is among the pillars of building public trustFootnote 49 and countering the misunderstanding and misuse of data. Research shows that long-term transparent communication leads to increased public trust and greater cooperation with authorities.Footnote 50 Effective transparency requires calculated risk communication, presenting to the public clear information of robust scientific consensus alongside areas of existing uncertainties. Decision-making processes around Israel’s “Green Pass” policy, for instance, lacked transparency and resulted in ambiguities and public concerns.
Lastly, equity is necessary to move forward, from a global health standpoint. As “Green Pass” policies are aimed at protecting one’s and health facilitating a safe return to a more normal life, these advantages should be enjoyed by all members of society.Footnote 51 Nonetheless, despite the wide availability of vaccines in Israel, lower vaccination rates were particularly recorded among minorities and communities of lower socioeconomic status, as noted earlier.Footnote 52 This raises a serious concern that imposing limitations on non-vaccinated individuals will primarily harm disadvantaged and marginalised individuals and groups. Numerous research articles show that the reasons for this phenomenon range from increased reliance on fake news to working and living conditions that hamper access to vaccines.Footnote 53 The “Green Pass” policy not only ignores these obstacles, but could also create additional structures of exclusion (by offering, for example, the costly alternative of on-the-spot tests).
Globally, the continued efforts to end the pandemic are undermined by the inequitable distribution of vaccines.Footnote 54 The WHO Director-General, Tedros Adhanom Ghebreyesus, stated that leaving countries or certain populations without access to vaccines is “epidemiologically self-defeating”.Footnote 55 As some countries were “vaccine hoarding”, a global adoption of immunisation passports could further deepen global disparities and inequalities. This is a crucial warning for Israel – as well as other countries – that vaccine nationalism or limited vaccine coverage entails a deadly price for us all.