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Proof of natural immunity could pose legal challenge to covid-19 vaccine mandates - here's why

Yahoo Finance's Alexis Keenan takes a look at recent lawsuits against covid-19 vaccine mandates by those who have natural antibody immunity.

Video transcript

- Natural immunity against the COVID-19-- against COVID-19 has been largely ignored as an alternative to vaccination, but proof of such immunity could emerge as a major legal challenge to mandatory vaccination policies. Yahoo Finance legal reporter, Alexis Keenan, is here with more on this. Alexis?

ALEXIS KEENAN: Hi, Brian. Yes, this is a new legal challenge that I'm watching emerge here. This question of whether proof of natural immunity needs to be a required alternative to mandatory vaccines.

Now, this is based on new studies that are tending to show that natural immunity is as good or better than immunity by vaccination, and research are also-- researchers are also finding in these studies that natural immunity paired with vaccination may be even more robust. But so far, there are, as far as I know, two lawsuits filed. Both are against universities.

One is by a medical professor at the University of California-Irvine. Another filed by a remote employee from Michigan State University. Now in both of these cases, these employees, what they argue is that the university's mandate for the vaccination, that that policy offering no opt out for a natural immunity proof, that that violates their constitutional rights, including the guarantees to equal treatment under the law as well as to bodily autonomy.

Now, these particular cases, they do hinge on the university's role as government entities, and that subjects entities to more strict scrutiny under the Constitution. And that's really different from the private sector employers that have much, much broader legal authority to adopt rules really as they see fit. But still, definitely getting some interest and some attention in the private sector.

There's a health care network called Spectrum Health out of Michigan, and they are already relying on this new research to change their mandatory policy and allow for proof of natural immunity in lieu of vaccination. So labor and employment attorneys, experts, they tell me to expect additional suits once this controversial OSHA rule is issued by the Department of Labor in the coming weeks. That rule is expected to require employers that have hundreds or more workers to mandate vaccination. Brian?

- Alexis, I'll pick it up from here. If natural immunity is accepted as a substitute for vaccine mandates, how many people are we talking about that would likely have this apply to them compared to those who've been vaccinated?

ALEXIS KEENAN: OK, so here's the numbers we have from the CDC. As far as US COVID-19 infections through May 27th of this year, and they started counting in February of last year, 120 million people are believed to have been infected. And that's about 36% of the population. So we could extrapolate and say, OK, at least 36%, possibly around that number, could have this natural immunity and therefore may not need a vaccination, or would be-- have more robust immunity if they were to pair it with a vaccination.

Also, those who have already been vaccinated, of course, those numbers still keep climbing. The CDC says as of yesterday, there were 102 million people who were fully vaccinated. That represents 55% of the US population. At least one dose, those folks, 212. Of course, that number expected, as we see there, higher. That's 64% of the population.

So really here the question becomes, at least on the private sector level, whether an employer is independently adopting a mandatory policy, or whether it's really the government enforcing it on an employer. So the lawsuits, if we do see challenges, they'll be in that space where we have employers who maybe haven't adopted a mandatory policy. But then once that OSHA guidance comes in and says you have to mandate it for your employees, those are the places where there may be some space in addition to these government actors that have gone ahead like a University, let's say, and said there's a mandatory policy and no opt out for this natural immunity.

- And, again, I know this is an emerging debate, but based on what you're hearing so far, how would people be required to show that they do have natural immunity and they still have antibodies present if these sorts of policies were to go through as a substitute for vaccinations?

ALEXIS KEENAN: Sure. So in the case of this Michigan health care provider, they are allowing for an antibody test. But it does have to be current. I don't know exactly the particulars on how many weeks they're going to allow, but they definitely have time lame-- a time frame limits on when the employee has to show that they have immunity.

And it'll also be interesting to see whether these tests, as lawyers say they expect testing to become much more of a larger issue here. Because there's also the case where we've had these breakthrough infections, and those who have vaccination could also be carrying a heavy viral load. So the expectation here is that testing is going to be very important. But the parameters around what constitutes immunity and for how long and how long that test is valid, those are all questions that remain really unanswered.

- Yahoo Finance's Alexis Keenan, thanks so much.