Governor Cuomo recently announced the launch of the Excelsior Pass, a free, voluntary way to share your COVID-19 vaccination or negative test results. The hope is that such a Pass, colloquially referred to as a “vaccine passport”, will reduce the spread of COVID-19 as businesses across the State continue to reopen. Although businesses cannot require the Excelsior Pass per se, they are permitted to require some proof of a vaccine or negative testing before entry. Whether the Pass will become a widespread and effective tool for doing so remains to be seen.

What is the Excelsior Pass?

The Excelsior Pass is essentially your own personal QR code, which is generated via an App downloaded to your smartphone. Consumers download the Excelsior App itself, while businesses download the corresponding “Scanner” App, both of which are available at the Apple store and through Google Play. After downloading the Scanner App, the business is required to register by providing its name, industry and the zip code where it will be validating Passes. Likewise, a consumer will be asked to provide their name, your date of birth, zip code, vaccination or test location, vaccination type or test type, and vaccination or test date. The QR code appears on the screen of the smartphone and can be stored in a virtual “Wallet, “much like electronic airline boarding passes. But it may also be printed to paper.

Those who want an Excelsior Pass will qualify if they:

  • have not tested positive for COVID-19 in the last 10 days;
  • have been fully vaccinated in the State of New York and it has been 14 days or longer since their final shot;
  • had a negative result from a PCR test in New York in the last 3 days; or
  • had an antigen test administered in the State of New York in the last six hours and the result was negative.

Accordingly, there are three types of Passes:

  • COVID-19 Vaccination Pass (valid for 180 days after the Pass is retrieved, at which time a new Pass may be retrieved);
  • COVID-19 PCR Test Pass (valid until midnight on the third day after a test); and
  • COVID-19 Antigen Test Pass (valid for 6 hours from the time of a test)

How Do You Know the Person Matches the Phone?

If the Pass scans as valid, the individual is required to verify identification by matching the name and birth date on the Pass to a photo ID. In accordance with State reopening guidelines, if no photo ID is available or the Pass does not match a photo ID, entry should be denied.

Does the Excelsior Pass Do Away with CDC Requirements?

The answer is a resounding “No.” The government website asks business to remind consumers to follow State and CDC guidance regarding social distancing, face coverings, and hygiene even after admittance via the Pass.

What If an Excelsior Pass is Invalid or if a Consumer Lacks ID?

If the Pass you scan is invalid, the government advises the business representative to “share with the Pass holder the reason for which the Pass is invalid, as it appears within the [App].” In such instances, an alternative form of proof of vaccination or testing would also be acceptable. However, if identity verification is not possible, entry should be denied. I

Is the Data Really Secure?

The Excelsior Pass is touted as a secure way to maintain COVID-related and other personal information. The State says that secure technologies like blockchain and encryption, are woven throughout. Other than that, however, it’s not readily apparent how the data is tracked or kept safe.

The State says that an individual’s data will be kept secure and confidential. While the App may be hosted by third parties working with the State, those parties are limited to use of the data for the purposes of follow-up communications and contact tracing. That being said, before you supply information via the App, you will be asked to agree to an authorization to disclose.

While there is no question that New York businesses can use every tool possible to aid in reopening, the implications of a vaccine passport, let alone one that required ID verification, remain to be seen. If you have questions about the Excelsior Pass and how it may affect your business, feel free to contact Jessica Baquet at 516-746-8000 or jbaquet@jaspanllp.com.