PA Employees May Soon Claim Natural Immunity, Opt-Out of COVID-19 Vaccine

Jeffrey S. Gross

The Pennsylvania legislature is weighing the possibility of allowing employees to dodge their employers’ COVID-19 vaccine mandates by claiming natural immunity. The passage of House Bill 2318 would mark a victory for employees who are opposed to taking the vaccine. Pennsylvania is not the only state seeking this type of exemption for employees. Idaho, Indiana, Ohio, and South Carolina are all seeking similar measures, and Arkansas, Florida, West Virginia, Utah, and Texas all have similar legislation on their books.

Possible Big Changes Ahead

This proposed bill may bring some big changes to COVID-10 vaccine mandate policies among Pennsylvania’s employers. If House Bill 2318 becomes law, employers will be required to provide a so-called “natural immunity” exemption to eligible employees under their current mandates for vaccination. This clause exempts employees who have had a previous COVID-19 infection.

Establishing Proof of Natural Immunity

Under HB 2318, employees who have been sick with COVID-19 in the past are not required to be vaccinated as a condition of continued employment. Employees exercising the natural immunity exemption have two options for demonstrating a previous COVID-19 infection. The first of these includes providing the employer proof of a previous infection from the treating physician. The second option is to provide a valid serology test from an approved source that demonstrates the existence of COVID-19 antibodies. The serology test must have been performed within the preceding 90 days. It is unclear if HB 2318 will make it past the Pennsylvania House Health Committee, where it is currently being reviewed.

Waning Natural Immunity

One confusing aspect of HB 2318 is that it states that when the exempted employee no longer has natural immunity, the employee must—within 30 days—provide additional evidence that they are immune. The bill does not provide provisions for how the employer will be able to discern when the exempted employee no longer has natural immunity.

What Is Natural Immunity?

The immune system’s job is to defend the body against viruses and bacteria that cause illness and infection, including the virus that causes COVID-19. When a person is infected with a virus, the body forms proteins known as antibodies that kill the virus. Future exposures to the same virus are then spotted by the immune system, which fires back at the virus with the antibodies it has made. This reduces the likelihood of a second infection by the same virus, or at minimum, is thought to reduce the symptoms of the virus.

Natural immunity does not last forever. It weakens with the passage of time, and how fast natural immunity wanes determines the potential for the immune person from becoming susceptible to recurring infections with the same virus or bacteria. For example, if someone becomes naturally immune to COVID-19, immunity tends to fade after around three months. By contrast, a child who becomes infected with measles will probably never contract measles again.

Issues surrounding COVID-19 in the workplace are still evolving. For help with employment-based legal matters related to COVID-19, reach out to the Philadelphia employment attorneys at Gross & Kenny, LLP. You can contact us for a free consultation of your case by clicking here or calling 215-512-1500.

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