WASHINGTON (Legal Newsline) - Now that the Centers for Disease Control and Prevention (CDC) has updated its COVID-19 guidance to include natural immunity, private and public entities are being urged to update their vaccination policies or face the prospect of litigation.
“To the extent that their vaccine mandates have been depending on CDC guidance, that guidance has changed and vaccine mandates need to change accordingly,” said Mark Chenoweth, president and general counsel at the New Civil Liberties Alliance (NCLA).
The new guidance, posted on Aug. 11 on the CDC’s website, no longer differentiates between vaccinated and unvaccinated status because breakthrough infections are known to occur.
“Persons who have had COVID-19 but are not vaccinated have some degree of protection against severe illness from their previous infection,” the CDC states.
A civil liberties lawyer, Chenoweth recommends public and private entities, such as universities and corporations, lift their vaccine mandates for, at the very least, Americans who were diagnosed with COVID-19 and recovered.
“We've seen universities continue to insist that students be vaccinated before enrolling even if they have naturally acquired immunity and that's just inconsistent with the science,” Chenoweth told Legal Newsline.
If public and private entities that have forced vaccination based on CDC guidance are sued for continuing to impose a vaccine mandate, they will no longer be able to cite CDC guidance and expect to win, according to Chenoweth.
“The strategy that courts have been following mostly has been to resist whether or not the science is right and instead depend on this rational basis review that it's rational for the employer to follow the CDC guidelines but they can't rely on that anymore because that guidance isn't there anymore,” he said. “If someone tries to defend themselves that way, it's not going to work.”
Although Chenoweth is not currently involved in such litigation, he expects the next wave of COVID-19 lawsuits to be focused on companies that are depending on outdated CDC guidance.
"If it’s a public entity, whether it's state or local government or a public university, then they have constitutional rights at stake and you can assert those constitutional rights,” he added. “If you're a private employee, or if you're a student at a private university, then your constitutional rights are much diminished and you’ll have to pursue a different strategy. Either way, you do want to point to the CDC guidance because they are linked to the game."