On October 22, 2021, a judge in Kern County determined that the power of the State is such that it can mandate vaccinations for certain employees.  The judge stated that the Court was not in a position to dictate which and when such steps should be ad­dressed by the State to deal with the COVID-19 pandemic.  This finding is similar to litigation in other states enforcing the vaccination mandate through either executive order or legislation to control the spread of COVID-19.  There are some limited exceptions based on religious perspectives and beliefs.  The rationale for govern­ment-mandated vaccinations is based upon the attempt of the government to control the spread of the pandemic, and does not reflect the potential immunity obtained by some individuals who have been in­fected with COVID-19 and subsequently recov­ered.  Therefore, having had COVID-19 could potentially be viewed as a vaccination.

The argument being made against vaccination mandates is that they violate meet-and-confer collective bargaining between unions and employers.  In many situations, however, the courts have responded by finding that such mandates adhere to the power vested in the Federal Government and states to control the spread of disease.  State interests in maintaining public health empower em­ploy­ers, the state, cities and other municipalities to mandate vaccinations, and failure to do so can be a basis for termination.  Again, man­dating vaccinations does not reflect an aspect of immunity which can be in a worker’s sys­tem from having experienced COVID-19 and recov­ered from it – a medical change which, in essence, may consti­tute a COVID-19 vaccination.

A recent study by the University of Pennsylvania acknowledges that there are ways to con­trol the advancement of COVID-19.  The first way is through vaccina­tion.  The second way discussed is that people who have acquired a sufficient level of immunity to infection can limit the advancement of the coronavirus.  This concept of a community level of immunity through infection is one that is being looked at and may not mandate vaccination.  Each individual has a dif­fer­ent response to COVID-19 exposure, but of particular significance is the recog­ni­tion that individuals who have not been vaccinated indeed can develop immu­nity to the occurrence of COVID-19.  While studies indicate that this group can benefit from being vacci­nated, the findings reveal that individuals who have this immunity have a much lesser likelihood of reacquiring the virus even without a vaccination

Another level of analysis suggests that some workers who recover from COVID-19 still need to be vaccinated.  The approach of local govern­ments, counties, cities, states and the Fed­eral Government has been to em­brace the concept of a blan­ket mandate to vaccinate everyone.

Of note, the antibody levels in both vaccinated individuals and people who have recov­ered from COVID-19 infections drop over a period of time, resulting in reduced immunity in both groups.

In a study done by Rockefeller University on August 24, 2021, it was discovered that indivi­duals who have previously contracted COVID-19 show a more potent anti­body response than those who were solely vaccinated for the virus.  Previously-infected COVID patients appeared to develop memory D cells which produce more potent antibodies than memory cells developed through vac­ci­nation.

Research has further shown that recovered COVID-19 pa­tients possess neu­tral­izing anti­bodies up to a year after infection, and such in­fec­tion as­sists in offer­ing protection against developing variants.  The study states: “Both groups re­tained the ability to neutralize all the variants of the coronavirus, but those pre­viously infected displayed overall better neutrali­zation capacity.”

The Chief Medical Adviser for the President acknowledges we are learning more about post-infection immunity, but nevertheless recommends vaccinations.

In August 2021, Dr. Michel Nussenzweig at Rockefeller University recommended that even individuals who have recovered from COVID-19 should be vaccinated, because the combi­nation of vaccination and prior infection produces the high­est level of protection.

Dr. Michael Osterholm, Director of the Center for Infectious Disease Research and Policy at the University of Minnesota, has stated that he believes the level of protection from pre­vious infections over time will not be accepted as immu­nity.  How­ever, the science of immu­nity without vaccinations is ever evolving and will change as more information is developed.

Cornell Law School uses the term “vaccine” to mean “any substance designed to be admin­istered to a human being for prevention of one or more diseases” (26 U.S. Code 4132).

At this time, differences of opinion clearly exist as to the individual situations for people who have been vaccinated and those who have not been vaccinated but have been in­fected by coronavirus and recovered from the disease with some degree of im­mu­nity.  This conflict is good in that it creates knowledge regarding both the benefit of the vaccine for those who have been vaccinated, and the benefit of having experienced COVID-19 for many who have been infected and recov­ered.

While medical studies reflect that the vaccination has value, there needs to be further understanding as to both pre-existing immunity and subse­quent immu­nity for COVID-19 survivors.  Existing studies clearly indicate that corona­virus survivors do have some degree of immunity.  The question then becomes: What are the dif­ferences for those who have been vaccinated and those who have been in­fected by COVID-19 and recovered?

It would appear that the courts, in embracing vaccination mandates, should seek further information as to the immunity which does exist for COVID-19 sur­vivors.  How similar is their protection to being vaccinated?  Is it similar to the extent that they can be held exempt from vaccination mandates?  Hopefully, the future will soon provide these answers.