Should Unvaccinated but Previously Infected with COVID-19 Employees Be Exempt from Mandatory Vaccinations?

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

There is a growing argument that there should be three types of people considered under COVID-19 protocols:  unvaccinated, vaccinated, and previously infected.  This argument claims that because they were infected, they have the antibodies similar to vaccinations, and in certain studies, better protected than those who are vaccinated.

This argument is gaining traction among employees who do not want to be vaccinated. They claim that any vaccination mandate discriminates against them by lumping them in with the unvaccinated.

A study by Yale University found that both the previously infected and those vaccinated had antibodies that have the ability to neutralize variants of the coronavirus, and that those previously infected had a higher degree of protection.  This study was published in the online version of Nature on October 11.  In fact, a previous study by Dr. Michel Nussenzweig, an immunologist at Rockefeller University, supports this premise.  He found that previously infected patients seem to develop memory-B cells that produce more potent antibodies than memory-B cells in people who developed immunity through vaccination.

Dr. Anthony Fauci recognizes the studies and states that this question is legitimate, but research into the previously infected is not as robust as the vaccinations. “It’s a legitimate question to ask, if post-infection immunity is legitimate to compare to post-vaccine immunity in terms of the protections it provides,” Dr. Fauci said. But the vaccine “has been given to billions of people, and its efficacy and real-world effectiveness have been proven beyond a doubt in an overwhelming number of cohorts and studies,” he added. 

Even Dr. Nussenzweig recommends vaccinations even if the person has been previously infected.  He recommends it because the combination of prior infection and vaccination produces the highest possible level of protection.  Further, the infections are not uniform among those infected with various degrees of infections.  Experts say that such variance doesn’t guarantee a more robust immunity if infected only.

“In the absence of studies demonstrating the level of protection from previous infection and detailing what happens over time, I think that you will not see these cases being accepted as immunity,” said epidemiologist Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota.

Unions are pushing back.  In one case of an airplane manufacturer in Kansas, the union argues that being previously infected should make the employee exempt from the vaccination requirements.  “If you have the antibodies and natural immunity, there’s no reason to enforce the mandate for those people,” said union representative Bobby Crawford, a cancer survivor who said he’s vaccinated.  Unions are across the board on this issue, but they will generally support their members stance to not be combined with the unvaccinated.  The COVID-19 vaccination mandate may give rise to more unionization in the workforce, which may be the end result this administration wants.

Even the scientists are pushing back against the heavy handed approach of the government.  “We have precious few levers to pull in public health,” said Marty Makary, a cancer surgeon and health-policy expert at Johns Hopkins University who has been critical of vaccine mandates and urged caution in vaccinating children. “When we use vaccination as a hammer and say it’s the only way to be protected, it has bad outcomes.”

When the OSHA emergency temporary standards (ETS) are published, they will likely follow the guidance of the Safer Federal Workforce Task Force.  It appears that testing will be an option, and fines will be heavy if cited.  OSHA is understaffed, but given the priorities of the administration, employers with 100 or more employees will have to make a choice.  And for those in states with laws against any vaccine mandates, lawsuits will arise concerning the Supremacy Clause and whether ETS supersedes state and local law.