‘Science Is Going To Have To Move Pretty Fast’
There’s little room to challenge a private-sector employer’s independent vaccination mandate because private employers, with certain exceptions for medical and religious reasons, have a right to adopt their own policies aside from any government mandate.
Challenges to vaccine mandates, therefore, are much more likely to be seen against the Department of Labor’s vaccination rules or other government-run entities (like in the case of Michigan State University).
At the same time, some private companies are incorporating natural immunity into company vaccination rules.
On September 9, Spectrum Health, a Michigan-based health care provider, became one of the first major employers in the country to offer its workers proof of natural immunity as a temporary alternative to vaccination. According to
Detroit News, the company will accept a positive antibody test within the past three months coupled with either a positive PCR test or antigen test for COVID-19 as proof of immunity.
In the case of federal mandates, the scientific and legal arguments for natural immunity could face an uphill battle.
David Baffa, an employment litigation attorney and leader of Seyfarth Shaw’s workplace counseling and solutions group, said that he doesn’t anticipate that the federal mandates will include a path for permitting natural immunity in lieu of vaccination unless there’s a dramatic swing in science cited by the government.
“I think science is going to have to move pretty fast, and by that I mean the Centers for Disease Control and Prevention and recognition of [natural immunity] as a viable alternative,” Baffa told Yahoo Finance.
Zywicki, for his part, expects that courts facing decisions concerning COVID-19 vaccination mandates will eventually reconcile the competing precedents.
“Clearly here, there’s no compelling interest” he argued with respect to a government’s interest in treating vaccinated individuals different from those who prove immunity acquired through prior infection. “And we’ve got all kinds of ways of verifying [immunity]. What the government should be doing is coming up with creative ways of recognizing this.”
Eisenmann, the labor and employment attorney, said some plaintiffs may be able to make a legitimate legal argument if natural immunity is authoritatively shown to be at least as good as vaccination.
“Right now I think it’s been easy for employers and the medical community to say the vaccine is always better,” he said. “But the science evolves and there are new strains.”