Wisconsin Republican lawmakers advance bill allowing employers to accept past COVID-19 infections as proof of immunity

MADISON – Republican lawmakers want Wisconsin employers to accept a past COVID-19 infection to meet vaccine and testing requirements aimed at protecting their workforces and to allow workers who don't comply with such mandates to qualify for unemployment benefits if they are fired.

The legislation is being advanced as Wisconsin enters one of the most threatening points of the coronavirus pandemic, with record-setting infections and nearly 80% of hospital intensive care units at peak capacity. 

Four states led by Republican governors changed eligibility rules for unemployment benefits in recent weeks to include workers who did not comply with vaccine mandates. And three states now require employers to accept a past COVID-19 infection as part of their vaccine and testing rules. 

Gov. Tony Evers has signaled he would veto such legislation.

Wisconsin bill author Rep. Cody Horlacher of Mukwonago and Sen. Mary Felzkowski of Irma are proposing to allow employers to accept documentation signed by a health care provider showing that the individual tested positive for COVID-19, or showing a serology test that demonstrates the presence of naturally occurring antibodies.

The proposal also would give employers the option to take their employees' word on having antibodies by accepting a notarized letter written by the workers as proof of a past infection.

Aides to Horlacher did not answer whether a medical professional would be required to be involved in drafting the letter. 

Health officials and epidemiologists say the proposals could encourage Wisconsin residents to avoid becoming vaccinated at a time of high virus transmission, thereby extending the pandemic. 

"As a policy, this is bad public health practice," said Patrick Remington, a former epidemiologist for the Centers for Disease Control and Prevention and director of the University of Wisconsin-Madison's preventive medicine residency program.

"When you get a viral infection, such as one from the SARS-CoV2 virus, our body responds with an immune response, and this 'natural' immunity protects against future infections. But this protection comes at a very high cost to society."

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The Wisconsin bill authors argue the legislation seeks to legitimize immunity from a prior infection as a form of protection during the new surge, allows employers to avoid staffing losses, and provides stability to those who lose their jobs.

"It's important that the state of Wisconsin understands and recognizes that natural immunity is a real thing and that it works," Horlacher said during a public hearing held Tuesday on the bill in the Senate Committee on Labor and Regulatory Reform.

"This bill seeks to give another tool in the toolbox not only for employees who are potentially looking at facing the loss of employment, but also employers who are looking to just do the right thing and maintain their workforce."

Felzkowski cited the European Union's decision to include COVID-19 recovery in their Digital COVID Certificate program and an Israeli study showing a past infection was more protective than vaccines in reducing the risk of infection and illness from the delta variant of the coronavirus. 

"This is not a question of should we be vaccinated or shouldn't we be vaccinated ... there is science that supports vaccination and there is science that supports natural immunity, and (the bill) allows individual people options," she said.

Ajay Sethi, an infectious disease epidemiologist and associate professor in the Department of Population Health Sciences at the University of Wisconsin-Madison, said overall, immunity from past infection is not as reliable as protection from a vaccine.

"Unlike the reliable and longer duration of protection provided by vaccination, the quality of protection after natural infection is less and varies greatly from person to person," Sethi said. "Immunity from past infection weakens over time, and it does so more quickly than the immunity provided by vaccination."

Sethi said people with milder infection have less protection than people who experience more severe illness and survive. He also cited a study from September of 72 people who had previously tested positive that showed about one-third did not develop any antibodies at all.

"Even if someone's past illness required hospitalization, the chance of re-infection is 5.5 times higher if unvaccinated as compared to someone who is vaccinated and never had infection before," Sethi said. 

The seven-day average of new COVID-19 cases reached more than 9,600 infections this week, 3,199 more than the average during last fall which had been the pandemic peak until a recent surge of cases fueled by the new omicron variant of the coronavirus. 

Hospitalizations are on pace to surpass last fall's peak, too, with the unvaccinated accounting for the vast majority of COVID-19 patients. 

President Joe Biden in November required employers of at least 100 workers and health care workers to implement vaccine-or-testing rules or face financial penalties.

The federal directive has been challenged, including by a large Wisconsin employer, and a majority of the U.S. Supreme Court signaled Friday it is skeptical of the Biden administration's authority in the matter.

"The nature and scope of the mandates being faced by workers today is unprecedented," Sen. Duey Stroebel, R-Town of Cedarburg, said Tuesday to argue in favor of his legislation to make fired workers eligible for unemployment benefits. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.