Now that at least one employer in the health-care field - Michigan's Spectrum Health - has decided to accept proof of natural immunity from prior infection as reason to waive its vaccination mandate for all employees, legal expert (and the reporters who love to quote them) are wondering: will the legality of proving natural immunity potentially win out in court?
The answer to that question, they say, will depend - as all things COVID-related do - on "the science", that nebulous and frequently shifting concept of how prior infection impacts immunity to new variants (and whether vaccine's do as well).
According to a report in Yahoo Finance, the notion that natural immunity is superior is already gaining support in the legal world. Presently, a handful of studies from different countries offer a conflicting view of whether natural immunity actually is superior to vaccinated immunity, or a combination of prior infection and vaccination
Since it's likely the federal government's aim to roll out vaccine mandates that cover practically every US worker (they're not too far off already), the issue of natural vs. vaccine immunity and whether some individuals should receive exemptions based on their antibody levels almost certainly be adjudicated in the federal courts.
At least one attorney quoted by Yahoo agrees:
"I think that a judge might reject a rule that's been issued by a body, like the U.S. Department of Labor or by a state, that has not been sufficiently thought through as it relates to the science," Erik Eisenmann, a labor and employment attorney with Husch Blackwell, told Yahoo Finance.
As we reported when it was first published, a report out of Israel suggests that natural immunity could be many times more effective than the Pfizer vaccine at preventing infection with the delta variant. That study has yet to be peer-reviewed, however, and the world is anxiously awaiting the results.
However, another peer-reviewed study cited by the CDC looks at dozens of cases in the US where certain people who tested positive for COVID never ended up generating the antibodies, which, science dictates, are necessary to fend off future infection.
The CDC also published a study of 246 Kentucky residents, concluding that vaccination offers higher protection than a previous COVID infection. The CDC said the study went through a "rigorous multi-level clearance process" before submission, but now some are concerned it's slightly out of date since it pre-dates the rise of delta.
But as far as supporting natural vs. vaccinated immunity goes, this study is another big one: A C A June study by the Cleveland Clinic and Washington University tracked 52,238 Cleveland Clinic employees found that within 1,359 previously infected and unvaccinated people, none contracted a subsequent COVID-19 infection over the five-month study. The findings led authors to conclude that prior infection makes a person "unlikely to benefit from COVID-19 vaccination."
Then there's this:
In a smaller study conducted by Washington University School of Medicine and published in Nature, senior author Ali Ellebedy, PhD, an associate professor of medicine and of molecular microbiology, found antibody-producing cells in the bone marrow of 15 of 19 study subjects 11 months after their first COVID-19 symptoms. "These cells will live and produce antibodies for the rest of people’s lives. That’s strong evidence for long-lasting immunity,” Ellebedy said.
The legal and scientific standards are intertwined here, but as more data develops that appears to validate the argument that natural immunity is at least as effective as vaccinated immunity, it's more likely that lawyers will succeed in convincing judges that the standard should be "immunity by any means."