Could natural COVID-19 immunity trump vaccine mandates?

Yahoo Finance's Alexis Keenan provides the latest on how businesses are handling the COVID-19 vaccine mandate.

Video transcript

SEANA SMITH: Big tech giants are expanding their office footprint. Google buying an office building in York City for $2.1 billion. And we're seeing this more and more as companies figure out their policies and how they are going to be bringing workers back to the office.

For more on that, we want to bring in Alexis Keenan, who's looking into this for us. And, Alexis, you're specifically looking into the vaccine and testing mandates and whether or not workers with natural immunity, if they can avoid some of those vaccine and testing mandates. What did you find?

ALEXIS KEENAN: Hi, Seana. So this is emerging as really the next frontier in litigation that's surrounding COVID, this question of whether natural immunity should be required as an alternative to mandatory vaccine policies. Now it's based on also emerging science that is tending to show that natural immunity is as good at times or better than vaccination. So, at least, two cases have been filed.

So far both are against universities. One is the University of California Irvine, the other Michigan State University, my Alma mater, actually. In both of these cases, the employees of the schools, they're arguing that mandatory vaccine policies that don't have an opt out for those who have natural immunity and can prove it, that they violate the rights that are protected by the Constitution under the Ninth Amendment, under the 14th Amendment, that guarantee equal treatment on one hand and bodily autonomy on the other.

Now those cases hinge on the university's role as a state actor, as a government actor, which is subject to much more strict scrutiny under the Constitution, but the subject is getting a lot of attention in the private sector as well. There's one health care organization in Michigan called Spectrum Health. That's already pointed to this emerging science to say, we're going to change our policy and allow employees to provide proof of natural immunity in lieu of vaccination.

Now labor and employment attorneys, they tell me to expect more challenges along this line, especially ones, that new and anticipated OSHA rule comes out that's being issued by the Department of Labor in the coming weeks. Now that rule is directed by the Biden administration, saying that larger employees, those with hundreds or more employees, will have to mandate vaccination for their workers. So a number of studies are making headlines along these lines. And so it will be very interesting to see how many challenges do come about, especially after this OSHA rule is issued.

ADAM SHAPIRO: And we're still waiting for OSHA for the rule. How likely-- is there any precedent? Do we have any kind of previous experience we can look at to say, oh, yeah, this will stand or, oh, no, this won't based on what OSHA's done in the past?

ALEXIS KEENAN: So, Adam, there is a over a century old Supreme Court decision. And it came out of Massachusetts in 1905. It's foundational in this regard. It's led a lot of people to believe that, as the court held, the state would be allowed to mandate vaccination for its citizens, but there's also later Supreme Court precedents that suggest that governments cannot just have their way and impose any sort of injection or bodily integrity issue against someone.

So I think that, so far, it sounds like, at least, the legal experts that I've talked to in this area, they say that somehow the Supreme Court is going to have to reconcile these two lines of thinking, but there really is no true precedent. Bottom line, some lawyers say that the government is going to have to show a really compelling state interest that it just might not have, unless it lets people prove, hey, I have natural immunity. I have my papers and that the government, therefore, won't be able to discriminate between those who have the vaccine and those who have the natural immunity, that the bottom line is that the goal is immunity, not necessarily vaccination.

SEANA SMITH: All right, Alexis Keenan, thanks so much for breaking that down for us.