The stated goal behind mandatory vaccination policies is to protect against the spread of disease, meaning that the crux of any policy is immunity. The notion that a previous COVID-19 infection provides natural immunity that can be at least as good as vaccination in some people is something a judge would likely need to consider in a challenge to a mandatory policy, especially against a government actor.
“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…
Zywicki told Yahoo Finance that while government entities have a right to take reasonable precautions against the spread of communicable diseases, that power has its limits. Those limits, according to Zywicki, are grounded in the 1905 Supreme Court decision Jacobson v. Massachusetts that upheld a state smallpox vaccine mandate, though the precedent may be challenged given legal and scientific evolution.
“That was a different medical era,” Zywicki said. “There was no way to confirm whether you had a prior infection and recovery, which is obviously the case now.”