By Alexa R. Hanlon, Associate, Fisher Phillips
From the advent of the COVID-19 vaccine to the present, the use of fraudulent vaccine cards by employees and consumers alike has markedly proliferated. The growth, resulting in a robust online black market for fake cards, is widespread and impacts both domestic and international industries. As a vulnerable industry already inundated with sick patients, the healthcare community is not immune from the scammers; therefore, companies should be vigilant and thorough in verifying employee, patient, and/or visitor vaccine status.
How Big is “Widespread”?
In a November 2021 survey by Qualtrics, and cited by Forbes, close to 30% of unvaccinated workers said they would lie about vaccine status to keep a job. Further, approximately a quarter of Americans know someone who has lied or would lie, for employment and to participate in consumer activities like travel, shopping, accessing the gym and restaurants, and attending sporting and other entertainment events. If prevalent in these areas, it is no wonder the use of fake vaccine cards has infiltrated the healthcare industry.
The FBI has identified several sources and methodologies in the illegal manufacture and use of fake cards. The Justice Department’s Criminal Division, along with state and international officials, take prosecution of these crimes very seriously and have vowed to “vigorously investigate any criminal offense that contributes to the distrust around vaccines and vaccine status.” For example, a Chicago pharmacist, who was caught selling blank CDC vaccine cards for $10 on eBay, was charged with twelve (12) counts of theft of government property, each count carrying a potential maximum prison sentence of ten (10) years. The FBI Special Agent investigating the fraud stated, “Knowingly selling COVID selling [blank] vaccination cards to unvaccinated individuals puts millions of Americans at risk of serious injury or death.”
Another healthcare worker was arrested in New Jersey for selling hundreds of fake vaccine cards for $200 each via a social media scheme. Moreover, her co-conspirator tacked on another $250 in exchange for entering a fake card buyer’s name in the New York state vaccination database which feeds systems used to verify vaccine status at places they are required. She was charged with offering a false instrument, criminal possession of a forged document, and conspiracy.
As the examples in the healthcare industry illustrate, even those trusted to keep the public safe have been found embroiled in this illegal activity. In Vermont, following an FBI investigation, three State Troopers were forced to resign after their scheme involving the manufacture and sale of counterfeit vaccine cards was uncovered. Overseas in Vienna, Austria, police uncovered a conspiracy of vaccination fraud by healthcare workers at the country’s largest COVID-19 vaccination center. Interviewed witnesses claim there were piles of empty vaccination cards lying around and “ready to steal.”
What is the Risk to Healthcare Employers?
Regardless of the number of fake vaccination cards snaking through the industry, healthcare businesses should remain alert and vigilant in assessing vaccine records from employees and visitors in their own institutions. Thankfully, in response to the growing concern surrounding the fraud, several tech companies have developed and continue to enhance intelligent app-based platforms to store and aggregate vaccine data, allowing for “more programmatic validation of records.” As individual privacy rights are invariably intertwined with the scrutiny of vaccine records, the country’s tech giants and healthcare organizations have joined together and fueled rapid advancement in biometrics and the evolution of identity systems. Such systems are redefining the algorithms that monitor, predict, and react to anomalies in the flow and use of personal data. While privacy should remain at the forefront of considerations, these platforms, in employing biometrics and data aggregation, make it exceedingly difficult for fake vaccine documents to withstand over time.
Of course, one hundred percent reliance on these data aggregating apps does not relieve an employer’s duty to actively maintain a safe workplace. As the unvaccinated continue to pose a grave threat to the healthcare industry, jeopardizing patient care, it is critical that employers continue to enforce safety measures, including masking, social distancing, and COVID-19 testing requirements for inoculated workers. Such measures require industry employers to take this emerging problem seriously, ensuring unvaccinated workers, patients, or visitors are immediately identified and prevented from entering the building. However, particularly when dealing with patient care, concerns remain as to the consequences of an unvaccinated individual falling through the cracks, thereby endangering others. Fortunately, legal and medical liability in such scenarios is likely low. In short, the more reasonable and reliable your verification process, perhaps including both an app-based integration system and proactive safety measures, the more insulated from liability the company becomes.
In conjunction with employer measures to authenticate cards, fortunately, the FBI, Department of Justice, and local authorities largely understand the gravity of this increased fraudulent activity. In fact, the Attorney General’s office has made clear that “The Department of Justice and its law enforcement partners are committed to protecting the American people from these offenses during this national emergency.”
How Can You Tell?
If you identify or suspect the use of a fake vaccine card, take serious action for the employee’s insubordination and illegal activity, including termination. In evaluating authenticity, the following five steps will be crucial to your investigation:
- Identify neutral factors which reasonably indicate and allow for further inquiry. Factors include basic information missing from a standard CDC Vaccination card, such as manufacturer, lot number, date, and identification of the vaccine provider. Other red flags may include misspellings, inconsistent dates, the name of an unknown provider, apparent corrections, illegible portions, or the same handwriting (when the vaccine requires two shots on separate dates).
- Apply verification processes consistently. The making of additional inquiries absent sufficient reasonable suspicion carries the inherent risk of disparate treatment (singling out a single worker) without treating all workers the same way.
- Document the reasons why additional information is sought about a specific card.
- Recognize the heightened privacy concerns of the subject matter. In posing questions about the card, adhere to the objective factors discussed hereinabove.
- Ensure policies are clear. It is extremely important to communicate the company’s approach to vaccines and workplace safety. Policies should be updated to delineate to employees the requirement of truthful and authentic cards as well as the serious consequences for providing fake or otherwise misrepresented vaccine cards.
Although facing scrutiny by the Supreme Court, thereby pausing enforcement of the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard, the Agency issued the Fact Sheet, “Information for Employees on Penalties for False Statements and Records.” Although focusing on the criminal penalties associated with the knowing supply of false statements or documentation, OSHA directs employers to use the fact sheet in communicating required information to employees. Thus, it is prudent to include the criminal penalties for intentional misrepresentation of vaccine status in your policy outlining the consequences for such illegal activity. In referring to Section 1001 in Title 18 of the United States Code (Crimes and Procedure), such criminal penalties include a fine of up to $10,000 or a maximum prison sentence of five (5) years.
At this point in time, the Centers for Medicare & Medicaid Services (CMS) has not issued specific guidance regarding fraudulent vaccine cards. However, the Agency takes Medicare and Medicaid fraud very seriously and has expanded its efforts to prevent fraud through collaboration with state and law enforcement partners. If fraud is detected, the recommendation is to report to the Department of Health and Human Services. Correspondingly, the FBI has recommended the same when confronted with fake vaccine record(s).
As a healthcare provider, your greatest concern is patient care, which has become exceedingly challenging with daily skyrocketing COVID-19 cases. While increased scrutiny of vaccine cards is yet another administrative burden, in remaining alert to this global problem, you take another step in ensuring workplace safety and protecting patients amidst the pandemic.