Professor Paul Traynor cited in Bloomberg Law article
Antibodies Won’t Exempt Workers From Jab Mandates, Observers Say
A law professor faces long odds to convince a court that he doesn’t have to comply with his university’s Covid-19 vaccine mandate on account of his “natural immunity” from a prior infection, legal observers said.
Court rulings that have upheld vaccine mandates, as well as research and public health guidance suggesting vaccines are necessary even in cases of previous infections, stand as significant obstacles to Todd Zywicki’s lawsuit against George Mason University, observers said.
Zywicki’s legal challenge comes amid growing momentum for vaccination requirements. Hundreds of colleges have rolled out mandates for the fall semester. Walmart Inc., Tyson Foods Inc., Walt Disney Co., Google LLC, Facebook Inc., and other large companies have announced requirements, following several major health-care systems in mandating the jab.
President Joe Biden announced last week that federal employees and some contractors must get vaccinated or wear masks and submit to regular Covid-19 testing. California and New York City have rolled out that type of jab policy for public workers.
GMU has a similar “soft” mandate calling for masking, testing, and social distancing for those who don’t get inoculated, as opposed to the “hard” vaccination-or-termination mandates that are also in use.
Zywicki said in his Aug. 3 lawsuit that he has natural immunity from his earlier bout with Covid-19 and his immunologist advised him it’s not medically necessary to get vaccinated. He lodged constitutional claims against GMU, alleging that his rights to bodily integrity and informed medical choice “are being infringed upon” by the public university’s mandate, according to his attorney Jenin Younes.
Vaccine mandates “absolutely” apply to people who’ve recovered from Covid-19, said Lawrence Gostin, a public health and law professor at Georgetown University.
“Recovery from Covid doesn’t provide robust protection,” Gostin said. “Vaccines are far more effective.”
The Centers for Disease Control and Prevention recommends vaccination for people who’ve recovered from Covid due to uncertainty about how long the protection from a prior infection lasts. People should wait 90 days before getting vaccinated if they were treated with monoclonal antibodies or convalescent plasma.
Covid-19 vaccines are also better at targeting variants of the virus than antibodies from an infection, according to the National Institutes of Health.
Jonathan Segal, a partner at Duane Morris, said “the question is not whether or not each employee can have their doctor decide for them whether they need it. The question is whether they have a medical reason why they can’t be subject to the mandate.” As long as the university respected Zywicki’s 90-day trial period, Segal said he thinks the case should be thrown out.
But given that prior infection does provide some protection, “it could in fact be a due process violation to require someone to receive the vaccine that will have no demonstrable additional effect” if they have antibodies equivalent to those a vaccine would produce, said Brian Abramson, who teaches vaccine law at Florida International University College of Law.
While no lawsuits offer a perfect precedent for this particular case, “many state statutes permit workers in the health-care field to avoid vaccination for diseases like measles and rubella if they are able to demonstrate that they have antibodies,” Abramson said.
On the other hand, some prisoners who sought early release during the Covid-19 pandemic were “denied release because they have previously had Covid-19 and are presumed to have a certain amount of protection due to the antibodies,” Abramson said.
Indiana University’s early success against a constitutional challenge to its vaccine mandate signals that Zywicki’s lawsuit is likely to fail, said Paul Traynor, a law professor at the University of North Dakota who teaches health law.
The U.S. Court of Appeals for the Seventh Circuit earlier this week rejected students’ request for a preliminary injunction blocking the university’s mandate, saying that the policy is very likely constitutional.
Vaccination refusal isn’t “a fundamental right ingrained in the American legal tradition,” the Seventh Circuit said. “To the contrary, vaccination requirements, like other public-health measures, have been common in this nation.”
Federal courts have also thrown out lawsuits challenging inoculation requirements at Houston Methodist Hospital and Los Angeles Unified School District. Those lawsuits objected to jab requirements based on the vaccines being in use under the Food and Drug Administration’s authorization for emergency products.
Zywicki raised the vaccines’ emergency use authorization to argue against GMU’s mandate.
The U.S. Justice Department has said that the emergency approval doesn’t prohibit employers, universities, or other entities from requiring inoculations. The department’s memo on the topic was made public July 26, the same day the Biden administration announced doctors, nurses, and other health-care personnel at Veterans Health Administration facilities must get vaccinated.