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President Joe Biden has ambitious plans to “Build Back Better” by spending trillions more on a broad array of infrastructure projects. At the same time, his administration wants to reverse regulatory reforms that tried to speed up the delivery of those projects.

Late last week, the White House’s Council on Environmental Quality (CEQ) announced that it intends to undo the prior president’s changes to the regulations implementing the National Environmental Policy Act (NEPA).

Passed in 1969, NEPA requires federal agencies to study the environmental impacts of actions they take, whether that’s funding a new highway or approving a new pipeline. Over the decades, the burden imposed by NEPA has grown: The environmental reviews it mandates take years on average to complete and can run hundreds if not thousands of pages.

Donald Trump’s administration tried to streamline things a bit by limiting the environmental effects that agencies had to examine and by putting definitive time and page limits on NEPA reviews.

Even those marginal changes, implemented in September 2020, proved controversial with many environmentalists. Their concerns have resonated with the Biden administration.

“The basic community safeguards we are proposing to restore would help ensure that American infrastructure gets built right the first time, and delivers real benefits—not harms—to people who live nearby,” said CEQ Chair Brenda Mallory on Thursday.

The proposed rule published by the CEQ in the Federal Register would make a number of changes.

Most significantly, it would restore requirements that agencies’ NEPA reviews take into account the indirect and cumulative effects of projects.

The short-lived Trump changes said agencies generally didn’t have to study impacts of projects that are “remote in time, geographically remote, or the product of a lengthy causal chain.” According to the Biden administration, that narrower requirement prevented agencies from properly accounting for longer-run climate change impacts.

The Trump administration’s NEPA reforms also treated CEQ rules as a ceiling, meaning agencies couldn’t impose additional requirements of their own. The Biden administration would instead treat CEQ rules as a floor, giving agencies the power to perform reviews that go beyond what the council requires.

Environmentalist groups have generally praised these changes.

“Restoring the obligation to consider direct, indirect, and cumulative emissions is critical for disclosure of climate and environmental justice impacts,” the Sierra Club announced last week. “Reviews that don’t look at indirect and cumulative effects of fossil fuel projects (such as coal mines, gas leases, pipelines), miss 95 percent of climate emissions and their impact on communities.”

Other NEPA experts are more critical, arguing that this is an ineffective and potentially counterproductive way to address climate change.

“All it does is create a little more paperwork,” says Eli Dourado, a senior research fellow at Utah State University’s Center for Growth and Opportunity. “Given the need to build a lot of infrastructure and new technologies and physical stuff in the world, NEPA is probably on net harming our response to climate change.”

Indeed, NEPA has slowed down a number of projects that environmentalists would typically support for their emission-reducing potential.

The U.S. Bureau of Ocean Energy Management’s 2019 decision to perform a cumulative impact analysis under NEPA of a massive wind farm being constructed off the coast of Massachusetts has significantly delayed that project.

It will likewise take years for the federal government to perform a NEPA-mandated review of a plan to charge drivers a toll to enter lower Manhattan. Environmentalists and transit advocates have generally praised that congestion pricing plan for its potential to reduce carbon emissions and to raise money for public transit. The tolls were supposed to be up and running in January 2021. The need to perform an environmental assessment for the project will mean that it now won’t start until 2023 at the earliest.

All the additional green investments the Biden administration and Democrats in Congress want to fund with their $1 trillion infrastructure bill and $3.5 trillion Build Back Better legislation could run into a similar fate.

“It’s making some of the infrastructure projects they want to do radically more expensive,” says Neil Chilson, a senior research fellow at Stand Together. He says the regulatory changes will also empower the nation’s NIMBYs to slow down projects they dislike.

The NEPA process allows third parties to file complaints with federal agencies claiming that the environmental impacts of a project haven’t been thoroughly studied enough. Once that complaint is raised, the agency then has to decide if there’s any merit to it.

“That process just takes forever,” says Chilson, during which time project sponsors are prevented from moving ahead with whatever they’re trying to build. NEPA also allows third parties to sue over supposedly inadequate environmental reviews, which can drag things out even longer.

By expanding the number of effects that have to be considered in the NEPA process, the Biden administration is giving project opponents more room to claim that an environmental review is insufficient.

Federal agencies and private project sponsors, in turn, will have to spend more time preparing litigation-proof environmental documents to preempt these complaints, says Chilson.

That could be particularly damaging for solar plants that are proposed to be constructed on public lands in the American west, and which have attracted fierce opposition from local groups concerned about their impact on endangered species and recreational lands.

The White House isn’t getting rid of every Trump NEPA reform. The new rule doesn’t touch requirements that environmental assessments be no more than 75 pages long and environmental impact statements no longer than 300 pages. “Shot clock” requirements that these reviews be completed in one to two years are also left in place.

CEQ has said that reversing those Trump-era tweaks is only the first phase of its planned rulemaking. In a second phase, the administration says, it plans to make more substantive changes that create “efficient and effective environmental reviews.”

That leaves open the possibility that we’ll get more productive reforms later on, says Dourado.

“Nobody says everything is fine in permitting world. I expect [the administration] to at least have some constructive ideas for how to improve permitting,” he tells Reason.

The average Environmental Impact Statement—the most stringent level of review mandated by NEPA—takes 4.5 years to complete and runs around 669 pages. That’s up from 2.2 years in the 1970s.

Dourado thinks the federal government should expand the use of categorical exclusions that allow projects to skip the NEPA process entirely. Chilson says Congress should take still more sweeping action if it really wants to pare back NEPA—which, he notes, can trip up a lot more than just infrastructure projects.

Everything from approval of new vaping products to forest management programs has to go through the NEPA process. Every year, federal agencies produce roughly 176 environmental impact statements and 10,000 environmental assessments (a less onerous version of NEPA review that can still take years).

Because “it’s been interpreted so broadly, and because the federal government has a hand in the approval of so many things, many things that would otherwise be private changes now implicate NEPA and all the red tape that comes with it,” says Chilson.

Sens. Mike Lee (R–Utah), Ted Cruz (R–Texas), and Kevin Cramer (R–N.D.) have proposed a package of bills that would permanently streamline the NEPA process. The infrastructure bill passed by the Senate also includes an extension of some temporary NEPA streamlining measures.

Not all, or even most, of the new infrastructure spending Congress is mulling should be considered a wise investment. But Biden’s proposed NEPA changes only ensure that more federal money will be spent on red tape.

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Introduction

Say that I accurately write that you have been convicted of a crime, but I knowingly fail to mention that the conviction has been reversed.[1] To make the matter particularly stark, say the conviction has been reversed on grounds that show you were innocent (rather than just for procedural reasons). Or say that I accurately write that you were charged with a crime, but knowingly fail to mention that you were acquitted.

Is that libelous? This question arose in the course of my writing a separate article in this issue, which deals with whether a later reversal triggers an obligation to remove or modify the account of the original conviction.[2] But the question is important even apart from that separate question, so the editors kindly allowed me to answer it in this separate short article.

[I.] Libel by Omission

It turns out that the cases dealing with this question overwhelmingly answer it “yes.” The law recognizes that even something that is literally true may be so incomplete and therefore misleading in its “gist”—its overall tenor—that it might be actionable libel. “[T]he law of libel has long recognized that omissions alone can render a statement false.”[3] “[M]aterial omission of facts that would render the challenged statement(s) non-defamatory” can yield “implied defamation”—”a defendant does not avoid liability by simply establishing the truth of the individual statement(s); rather, the defendant must also defend … the omission of certain facts.”^[4]

The classic example is Memphis Pub. Co. v. Nichols, where the Memphis Press-Scimitar wrote,

A 40-year-old woman was held by police in connection with the shooting [of Mrs. Ruth Nichols] with a .22 rifle. Police said a shot was also fired at the suspect’s husband.

Officers said the incident took place Thursday night after the suspect arrived at the Nichols home and found her husband there with Mrs. Nichols.[5]

What do you, as a reasonable reader, think happened? Well, here’s what really happened, but the story neglected to mention: “The undisputed proof showed that not only were Mrs. Nichols and [the shooter’s husband] at the Nichols’ home but so, also, were Mr. Nichols and two neighbors, all of whom were sitting in the living room, talking, when [the shooter] arrived.”[6]

The article was therefore a half-truth, with “the clear implication … that Mrs. Nichols and [the shooter’s husband] had an adulterous relationship”[7]—an implication that would have been absent had the omitted details been included. And this made the story potentially actionable as libel. Such a theory is sometimes called libel by omission, which is a special case of libel by implication or by innuendo.[8]

[II.] Libel by Omission of Critical Legal Context

Such libel-by-omission claims generally prevail only in cases where the omission is particularly stark and critical to the story. But omitting a reversal when talking about a conviction would generally qualify. “It is a misleading half-truth to say that a person was convicted … without including the fact that his conviction was overturned on appeal.”[9]

Likewise, liability may thus be imposed when “a defendant widely publicizes that a plaintiff was charged with a criminal offense but knowingly [does] not mention that the charge was found to be baseless.”[10] “The failure to report that [plaintiff] was acquitted, leaving the impression that he was guilty of the [charge mentioned in the article] was clearly more damaging to his reputation in the mind of the average reader than the truth would have been,” which is enough to make the partial account libelous.[11]

[III.] Not a “Full and Fair” Report

Another way of reaching the same result is through the “full and fair” element of the fair report privilege. Usually, fair reports about court proceedings and court documents are immune from defamation liability, regardless of whether there may have been some false statements within those proceedings or documents. The privilege exists because people need to be free to discuss formal allegations made in official court proceedings being considered by governmental actors.

But the reports have to be “full, fair, and accurate reports”[12] and “[a] report may not be ‘fair’ if it fails to reveal the ultimate outcome of the reported accusation.”[13] “[A]ccurately reporting a … charge … but failing, in the same article, to report the subsequent dismissal of the charge is not covered by the fair-report privilege.”[14] “The fair report privilege may not protect a publication that only reprints the allegations but not the favorable verdict.”[15]

In a sense, this is a version of the libel by omission theory:

1. Under the libel law republication rule, repeating false and reputation-injuring allegations is generally itself libelous, even if the repetition accurately summarizes the allegations: saying “A said that P stole money from petty cash” is libelous if P didn’t steal the money, even if it’s accurate that A said that P stole the money.[16]
2. The fair report privilege is a limit on this republication rule. Saying “The indictment said that P stole money from petty cash” or “The civil complaint said that P stole money from petty cash” isn’t libelous, even if P didn’t steal the money, so long as the summary of the legal documents is full, fair, and accurate.[17]
3. But saying “The indictment said that P stole money from petty cash,” but omitting P‘s acquittal, is no longer a “full and fair” report, precisely because it omits an important fact.

In such a situation, “[t]he falsity … lies not in what was said but in what was left unsaid…. For example, a person who is arrested erroneously, based on mistaken identity, thereafter should not be subject to media reports citing his arrest while ignoring his subsequent vindication.”[18]

[IV.] No Liability for Not Reporting Settlements or Expungements

To be sure, sometimes omitting the follow-up information doesn’t sharply change the gist of the original information: an expungement or settlement, for instance, doesn’t demonstrate innocence of the original charge. In that situation, omitting that information isn’t libelous. Thus, for instance, it isn’t libelous to mention an arrest without mentioning that it was expunged or that charges were dismissed for non-innocence-related reasons.[19]

It similarly isn’t libelous to mention that a lawsuit was filed without mentioning that it was settled.[20] “A settlement … is different from a favorable verdict. A settlement generally ‘reflects ambiguously on the merits of the action’ and is not a determination of whether the allegations are true or false.[21]

But mentioning a prosecution yet omitting the acquittal may well be libelous, precisely because it does change the gist of the overall story. Likewise with mentioning a conviction yet omitting the reversal. Reporting on lawsuits and criminal prosecutions is broadly protected against libel liability—but not when the outcome of those proceedings is omitted, and the reader is left hearing only about an indictment or conviction and not the acquittal or reversal.

[1] For purposes of this article, it’s enough to assume that I knowingly fail to mention this; but in principle I could be liable if I merely negligently fail to mention it, if you’re a private figure and you can show that you have suffered damages as a result of my negligent falsehood.

[2] See Eugene Volokh, The Duty Not to Continue Distributing Your Own Libels, __ Notre Dame L. Rev. __ (2022).

[3] Morse v. Fusto, 804 F.3d 538, 549 n.8 (2d Cir. 2015).

[4] Toney v. WCCO Television, Midwest Cable & Satellite, Inc., 85 F.3d 383, 387 (8th Cir. 1996).

[5] 569 S.W.2d 412, 414 (Tenn. 1978).

[6] Id.

[7] Id. at 421.

[8] See, e.g., Strada v. Connecticut Newspapers, Inc., 477 A.2d 1005, 1012 (Conn. 1984).

[9] Wiest v. E-Fense, Inc., 356 F. Supp. 2d 604, 610 (E.D. Va. 2005); see also, e.g., Martin-Trigona v. Kupcinet, No. 87 C 3347, 1988 WL 93945, *5 (N.D. Ill. Sept. 2); Purcell v. Westinghouse Broad Co., 191 A.2d 662 (1963); LaMon v. Butler, 722 P.2d 1373 (Wash. Ct. App. 1986), aff’d on other grounds, 770 P.2d 1027 (Wash. 1989); Karuza v. Chance, 81 Wash. App. 1014, 1014 (1996) (characterizing LaMon as concluding that “[a] true statement can also be defamatory if it has been legally voided”); Martin v. Griffin, No. CV 990586133S, 2000 WL 872464, at *18 (Conn. Super. Ct. June 13) (suggesting that mentioning a felony coupled with “the omission to mention the reversal of the conviction” could be libelous); see also Garcia v. Puccio, No. 108964/02, 2003 WL 25594218 (N.Y. Sup. Jan. 6) (reporting on complaint against plaintiff filed with the school but without mentioning “that the accusation was ultimately found to be baseless and expunged from plaintiffs teaching record” may be libelous under a “defamation by implication” theory, as not being the “substantial truth”); Reilly v. Gillen, 423 A.2d 311, 313–14 (N.J. Super. Ct. App. Div. 1980) (likewise); Entravision Commc’ns Corp. v. Belalcazar, 99 S.W.3d 393, 398 (Tex. App. 2003) (reporting on lawsuit against plaintiff but without mentioning that plaintiff had been dropped from that lawsuit may be libelous); Express Pub. Co. v. Gonzalez, 350 S.W.2d 589 (Tex. Civ. App. 1961) (same). But see Hoyt v. Klar, No. 2020-235, 2021 WL 841059 (Vt. Mar. 5) (holding that defendant’s mentioning plaintiff’s criminal charges but “fail[ing] to mention” that they “were later dismissed” didn’t constitute false light invasion of privacy, and presumably also didn’t constitute defamation).

[10] G.D. v. Kenny, 15 A.3d 300, 308 (N.J. 2011).

[11] Klentzman v. Brady, 456 S.W.3d 239, 268 (Tex. App. 2014), aff’d on other grounds, 515 S.W.3d 878 (Tex. 2017).

[12] E.g., Petro-Lubricant Testing Labs., Inc. v. Adelman, 184 A.3d 457, 471 (N.J. 2018); see also Restatement (Second) of Torts § 611.

[13] Fortenbaugh v. New Jersey Press, Inc., 722 A.2d 568, 573–74 (N.J. Super. Ct. App. Div. 1999); Mitan v. Osborn, No. 10-3207-CV-S-SWH, 2011 WL 4352550, *7 (W.D. Mo. Sept. 16, 2011) (“the fair report privilege” cannot “be met by pulling statements out of a brief filed in an official proceeding without reporting … the ultimate outcome of the proceeding”); Torres v. Playboy Enters., 7 Media L. Rep. (BNA) 1182, 1185 (S.D. Tex. Oct. 22, 1980); see also Lee v. TMZ Prods. Inc, 710 F. App’x 551, 558 (3d Cir. 2017) (noting that the fair report privilege applied because “Lee’s ultimate exoneration is not determinative. At the time the articles in question were published, the NYAG’s allegations against Lee were actively pending.”); O’Keefe v. WDC Media, LLC, No. CIV.A. 13-6530 CCC, 2015 WL 1472410, *5 (D.N.J. Mar. 30, 2015) (“Courts … have held that reports were not entitled to the protection of the fair-report privilege where the articles in question omitted ultimate exculpatory facts in ways that were misleading.”). But see Jenzabar, Inc. v. Long Bow Group, Inc., No. 2007-2075H, 2008 WL 7163549, *4 n.5 (Mass. Super. Ct. Aug. 5, 2008) (concluding that there’s no duty to “publish [a] follow-up” to an initial story when charges are retracted).

[14] Salzano v. N. Jersey Media Grp. Inc., 993 A.2d 778 (N.J. 2010).

[15] Petro-Lubricant Testing Labs, 184 A.3d at 472.

[16] Restatement (Second) of Torts § 578 cmt. b (Am. L. Inst. 1977).

[17] Restatement (Second) of Torts § 611 cmt. f. (Am. L. Inst. 1977).

[18] LaMon, 722 P.2d at 1377.

[19] Martin v. Hearst Corp., 777 F.3d 546, 553 (2d Cir. 2015); G.D. v. Kenny, 15 A.3d 300, 314–15 (N.J. 2011); Bahr v. Statesman Journal Co., 624 P.2d 664, 666 (Or. Ct. App. 1981). Likewise, in a case where a newspaper article mentioned an alleged police brutality incident, but didn’t mention criminal prosecution or acquittal, the court held that the article wasn’t “defamatory by the omission of the fact that the officers were later acquitted of criminal charges” because including that information “would not have placed the officers in any better light in the public mind.” Casper v. Wash. Post Co., 549 F. Supp. 376, 378 (E.D. Pa. 1982).

[20] Petro-Lubricant Labs., Inc. v. Adelman, 184 A.3d 457, 472 (N.J. 2018).

[21] Id.

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A federal judge on Friday rejected a Michigan State University (MSU) employee’s motion for a preliminary injunction against the school’s requirement that staff members be vaccinated against COVID-19. Jeanna Norris, an administrator at the school, argued that her “naturally acquired immunity” made the mandate “unlawful” as applied to her and other staffers who have recovered from the disease. U.S. District Judge Paul Maloney concluded that, notwithstanding the scientific evidence that Norris cited to support her position, the public university’s policy easily satisfied the “rational basis” test.

That standard of review is highly deferential, so it is not surprising that Norris, who is represented by the New Civil Liberties Coalition, did not get the injunction she wanted. Maloney notes that the Supreme Court applied what was essentially a rational basis test (although that term had not been invented yet) in the 1905 case Jacobson v. Massachusetts, which involved a state-authorized requirement that Cambridge residents be inoculated against smallpox or pay a $5 fine (equivalent to about $155 today).

Maloney rejected Norris’ argument that the vaccination requirement violates her fundamental rights to privacy and bodily integrity, which would have triggered strict scrutiny under the 14th Amendment, a much more demanding standard of review. “Plaintiff is absolutely correct that she possesses those rights, but there is no fundamental right to decline a vaccination,” he writes. “She also does not have a constitutionally protected interest in her job at MSU, which Plaintiff’s counsel conceded. The MSU vaccine policy does not force Plaintiff to forgo her rights to privacy and bodily autonomy, but if she chooses not to be vaccinated, she does not have the right to work at MSU at the same time.”

That analysis suggests why similar legal challenges by people with naturally acquired COVID-19 immunity are unlikely to succeed in court. But it does not settle the question of whether mandates like MSU’s, even if “rational” in the legal sense, are fair or reasonable in light of the scientific evidence.

Norris “has already contracted and fully recovered from COVID-19,” her complaint says. “As a result, she has naturally acquired immunity, confirmed unequivocally by two recent SARS-CoV-2 antibody tests. Her immunologist, Dr. Hooman Noorchashm, has advised her that it is medically unnecessary to undergo a vaccination procedure at this point.”

Maloney heard from dueling scientific experts on the question of how much protection prior infection confers. “There is ongoing scientific debate about the effectiveness of naturally acquired immunity versus vaccine immunity,” he writes. But he adds that “even if there is vigorous ongoing discussion about the effectiveness of natural immunity, it is rational for MSU to rely on present federal and state guidance in creating its vaccine mandate.”

That legal conclusion is distinct from the policy question of whether it makes sense as a workplace safety measure to issue a vaccine mandate with no exception for people like Norris—an issue that could be important in evaluating the legality of the Biden administration’s pending regulation demanding that companies with 100 or more employees require them to be inoculated or undergo regular coronavirus testing. That rule, which the White House announced a month ago, still has not been published. But it is not expected to include an exception for employees who have recovered from COVID-19.

The administration is relying on the authority that Congress gave the Occupational Safety and Health Administration (OSHA) to issue an “emergency temporary standard” when it is “necessary” to protect employees from “grave danger.” The issue of whether unvaccinated people with natural immunity pose such a danger is therefore legally relevant. It is also relevant for employers who are deciding the details of their own policies.

A widely cited Israeli preprint study posted in August suggested that natural immunity is more effective than vaccination at preventing infection by the delta variant. The researchers studied the records of patients enrolled in Maccabi Healthcare Services, which covers 2.5 million Israelis, a quarter of the population. Compared to unvaccinated patients who had recovered from COVID-19 in January or February 2021, they found, vaccinated patients with no history of infection were 13 times as likely to be infected between June 1 and August 14, 2021, “when the Delta variant was dominant in Israel.”

When the researchers included patients who had been infected at any point from March 2020 to February 2021, the difference in risk was smaller, suggesting that the protection from natural immunity wanes over time. But the “SARS-CoV-2-naïve vaccinees” were still six times as likely to be infected. “This study demonstrated that natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant of SARS-CoV-2, compared to the BNT162b2 two-dose vaccine-induced immunity,” the authors concluded.

Critics have pushed back against that conclusion, citing potential problems with the study’s retrospective design. James Lawler, an infectious disease specialist at the University of Nebraska College of Medicine, has noted that the vaccinated patients were more likely than the unvaccinated patients to be elderly and to have preexisting health conditions that made them especially vulnerable to COVID-19. The researchers tried to take that selection bias into account, but Lawler argued in an August 31 briefing that their adjustments may not have been adequate. He added that unvaccinated patients who died from COVID-19 were not included in the study, which also might have skewed the results.

One point on which the Israeli researchers and U.S. public health officials agree is that vaccination is beneficial even for people with natural immunity. The authors of the Israeli study noted that “individuals who were both previously infected with SARS-CoV-2 and given a single dose of the vaccine gained additional protection against the Delta variant.” A study that the Centers for Disease Control and Prevention published in August looked at Kentucky residents who had recovered from COVID-19, some of whom were subsequently vaccinated. The researchers found that unvaccinated people were more than twice as likely to be reinfected as fully vaccinated people.

But when it comes to vaccine mandates, the relevant question is whether an unvaccinated person with natural immunity is substantially more likely to catch and transmit the coronavirus than a vaccinated person without natural immunity. On that point, medical experts disagree.

Peter McCullough, a Dallas internist and cardiologist with a public health degree who testified in support of psychiatrist Aaron Kheriaty’s unsuccessful challenge to the University of California’s vaccine mandate, argued that the coronavirus “causes an infection in humans that results in robust, complete, and durable immunity”—a protective effect that is “superior to vaccination-induced immunity.” McCullough emphasized that antibody tests reflect only part of the immune response to a COVID-19 infection, which includes “antibodies to the nucleocapsid and to the spike protein, as well as T-helper cells, natural killer cells, B-cells, and innate immunity.”

By contrast, the Berkeley epidemiologist Arthur Reingold argued in the same case that the university’s blanket vaccine requirement was justified because the strength and longevity of natural immunity are unclear. “While individuals who have had a documented case of COVID-19 typically have antibodies to the SARS-CoV-2 virus detectable in their blood and are believed to have a reduced risk of getting COVID-19 again in the months that follow,” he said, “neither the completeness nor the durability of protection against a second case of COVID-19 has been established. The extent to which any such immunity resulting from having had COVID-19 provides protection against new variants of SARS-CoV-2 is also unknown.”

The British Society for Immunology (BSI) offers a similar gloss. “It’s likely that for most people vaccination against COVID-19 will induce more effective and longer lasting immunity than that induced by natural infection with the virus,” it says. But the rest of its summary paints a more complicated picture.

The BSI says the immune response to a COVID-19 infection “varies hugely between people.” Yet it also says the immune response to COVID-19 vaccine “varies,” although “most” vaccinations “produce a strong immune response,” even in “older people.” The BSI thinks vaccination “may produce a more robust immune response.”

The “length of protection” from natural immunity is “variable” and “not fully known,” the BSI says. But “protection tends to be lower in people who were mildly ill,” and it “reduces over time.” The length of protection from vaccination likewise is “still to be learnt,” although two-dose vaccines have “produce[d] long-term protection so far.” Assuming that protection wanes (the issue at the center of the debate about who should receive boosters and when), “booster vaccines could maintain a strong immune response.”

What about protection against variants? In people who have recovered from COVID-19, the BSI says, “reinfection [is] possible but uncommon.” Since “response to natural infection is variable,” the immune system “may not be able to recognize a viral variant.” Two-dose vaccines “provide strong protection against many currently identified variants,” which is more likely when “high antibody levels [are] produced.”

In both cases, then, immune responses vary from one person to another, may fade over time, and provide some protection against variants. Overall, the advantages of vaccination compared to waiting for an infection are clear, especially since people who catch the virus can transmit it to others and may suffer severe symptoms. But that does not mean unvaccinated people who already have recovered from COVID-19 pose a significantly higher risk than vaccinated people with no prior infections.

A private employer might conclude that a blanket vaccine requirement is easier to administer than one that makes an exception for previously infected people. The latter approach presumably would require documentation of prior infections. It might also require evidence, similar to the tests cited by Norris, of a robust immune response—although vaccinated people don’t have to produce such evidence, even though their immune responses also vary.

As a matter of public policy, however, that added complication does not seem unreasonably burdensome. The OSHA order described by the Biden administration already includes an exception for employees who agree to be tested at least once a week, which is more expensive and harder to arrange than a one-time requirement that employees document their COVID-19 histories.

Jeffrey Klausner, a clinical professor of population and public health sciences at the University of Southern California, co-authored a systematic review in the journal Evaluation & the Health Professions last month that found “the protective effect of prior SARS-CoV-2 infection on re-infection is high and similar to the protective effect of vaccination,” although “more research is needed to characterize the duration of protection and the impact of different SARS-CoV-2 variants.” As a result, he told Kaiser Health News, “From the public health perspective, denying jobs and access and travel to people who have recovered from infection doesn’t make sense.”

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