Introduction

Immunity passport labour discrimination law concerns the legality of using an individual's proof of immunity, vaccination status, antibody status, or a comparable health credential as a condition for employment, recruitment, promotion, workplace access, or termination. Although the term "immunity passport" became prominent during the COVID-19 pandemic, the broader legal issue extends to any system where employers classify workers according to their biological resistance to a disease.

Such systems may have legitimate public-health objectives, particularly in healthcare or other high-risk environments. However, they can also create discrimination, privacy violations, coercive medical practices and unequal employment opportunities. Labour law must therefore balance workplace safety with equality, bodily autonomy and protection of sensitive health information.

Constitutional equality and employment

Article 14 of the Indian Constitution guarantees equality before the law, while Article 16 provides equality of opportunity in public employment. An immunity-based employment classification must therefore have a legitimate objective and a rational connection with workplace safety.

In Air India v. Nergesh Meerza (1981), the Supreme Court examined discriminatory employment conditions and emphasised that employment classifications cannot be arbitrary or unreasonable. The case is relevant by analogy where an employer imposes substantially different employment conditions based upon a worker's health-related status.

For private employment, constitutional scrutiny operates differently, but statutory labour law, employment contracts, equality principles and public-law obligations may still constrain discriminatory practices.

Legitimate workplace safety requirements

An immunity requirement is not automatically unlawful. Its legality depends substantially upon the nature of the work and the actual health risk involved.

For example, a hospital treating highly vulnerable patients may have stronger grounds for requiring particular vaccination or immunity protections than an office where physical interaction is minimal.

The employer should therefore establish:

a demonstrable workplace-health risk;

reliable scientific evidence supporting the requirement;

a legitimate occupational purpose;

consideration of less restrictive alternatives;

reasonable accommodation where appropriate; and

consistent application of the policy.

A blanket immunity requirement applicable to every employee regardless of job function would face stronger legal scrutiny.

Privacy and medical information

An immunity passport necessarily involves the collection or verification of health information. This creates significant privacy concerns.

In Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), the Supreme Court recognised privacy as a fundamental right and connected it with dignity and informational autonomy. Health information falls within particularly sensitive categories of personal information.

Consequently, employers should not collect more medical information than necessary. If verification can establish whether a worker satisfies a legitimate workplace-safety requirement, disclosure of detailed medical records should ordinarily be unnecessary.

A proper system should incorporate:

purpose limitation;

data minimisation;

restricted access;

secure storage;

limited retention;

prohibition on unrelated commercial use; and

appropriate employee remedies.

Bodily autonomy and vaccination-related conditions

An immunity passport may indirectly pressure employees to undergo vaccination or medical testing. This raises questions concerning bodily autonomy.

In Suchita Srivastava v. Chandigarh Administration (2009), the Supreme Court recognised decisional autonomy in relation to bodily and reproductive choices. Although the case did not concern workplace vaccination, its broader principle is relevant by analogy.

An employment policy should therefore distinguish between requiring evidence of a safety condition and physically compelling medical treatment. Less intrusive alternatives should be considered wherever they can reasonably achieve the same workplace objective.

Medical exceptions and reasonable accommodation

A worker may be unable to obtain a particular vaccination or immunity status because of a medical condition, treatment, contraindication or other legitimate circumstance.

Automatically dismissing such workers could create disproportionate consequences. Employers should consider reasonable alternatives such as:

remote work;

reassignment;

protective equipment;

modified schedules;

additional testing; or

alternative workplace arrangements.

The appropriate accommodation will depend upon the nature of the job and actual risk.

Employment discrimination and stigma

Immunity passports could create a two-tier labour market. Workers possessing preferred health credentials might receive higher salaries, promotions or access to desirable positions, while others could be excluded.

Such practices could create indirect discrimination, especially where health status correlates with socioeconomic circumstances.

The legal inquiry should therefore distinguish between genuine occupational safety requirements and arbitrary preference for workers possessing a particular health credential.

In National Legal Services Authority v. Union of India (2014), the Supreme Court emphasised dignity, equality and protection against discrimination. Although the case concerned gender identity, its constitutional reasoning is relevant by analogy to the broader principle that State classifications should not undermine dignity or equal citizenship.

Public employment

The constitutional requirements are particularly significant where an immunity passport is required for government employment.

Article 16 requires equality of opportunity in public employment. A government department imposing an immunity requirement should therefore demonstrate why the requirement is relevant to the particular position.

A general rule excluding individuals from public employment solely because they lack an immunity passport could face challenge if it is arbitrary, disproportionate or unsupported by adequate evidence.

Employer liability and workplace safety

Employers also have legitimate responsibilities to protect employees and third parties. Failure to take reasonable precautions in a high-risk workplace may expose an employer to legal liability.

Therefore, the law should not create an absolute prohibition on immunity-related workplace requirements. Instead, employers should be required to demonstrate that their measures are evidence-based and proportionate.

The balance is especially important in healthcare, elder-care facilities, laboratories and other environments involving vulnerable populations.

International comparative law

European human-rights jurisprudence provides useful principles. In Vavřička and Others v. Czech Republic (2021), the European Court of Human Rights considered compulsory childhood vaccination requirements and accepted that compulsory vaccination measures can, under certain circumstances, be compatible with Article 8 of the European Convention on Human Rights.

The case does not establish that employers may freely demand immunity passports. Instead, it illustrates that health measures may be legitimate where they pursue public-health objectives and contain appropriate safeguards.

The proportionality of the particular measure remains crucial.

Accountability of immunity-passport systems

Government agencies and private providers operating immunity-passport systems should be accountable for inaccurate records, data breaches and discriminatory use.

A reliable system should provide mechanisms for individuals to:

correct inaccurate health information;

challenge an incorrect status;

obtain decisions explaining employment consequences;

appeal adverse decisions; and

seek compensation where unlawful processing causes harm.

Employers should also maintain written policies explaining why immunity verification is necessary and how the information will be handled.

Proposed legal framework

A balanced immunity-passport labour framework should incorporate:

Legitimate purpose: use only for genuine workplace-health objectives.

Necessity: demonstrate that the requirement is actually needed.

Proportionality: choose the least restrictive effective measure.

Privacy: minimise collection and disclosure of health data.

Non-discrimination: prohibit arbitrary employment disadvantages.

Accommodation: provide reasonable alternatives where feasible.

Transparency: inform workers about the purpose and consequences.

Accuracy: provide correction and appeal mechanisms.

Security: protect immunity records against unauthorised access.

Time limitation: review requirements as scientific and epidemiological conditions change.

Conclusion

Immunity passports can serve legitimate workplace-safety objectives, but they can also create serious risks of health-status discrimination and privacy violations. Indian constitutional principles provide a framework for balancing these competing interests.

Air India v. Nergesh Meerza, Puttaswamy, Suchita Srivastava, and NALSA provide useful principles by analogy concerning equality, privacy, bodily autonomy and dignity. Vavřička v. Czech Republic demonstrates comparatively that public-health measures can be compatible with human rights when appropriately justified and safeguarded.

The governing principle should therefore be that health credentials may be used in employment only where genuinely connected to workplace safety, scientifically justified, proportionate and accompanied by strong privacy and anti-discrimination safeguards. An immunity passport should never become a general licence for employers to discriminate against workers based upon sensitive health information.