No Vaccine Mandate, No DC Mask Mandate, No FDA and CDC Compliance
Are we finally seeing the beginning of the end of the COVID pandemic?
Finally, a slate of good news related to COVID!
This past Friday, the U.S. Court of Appeals for the 5th Circuit extended its initial stay on the federal vaccine mandate that stipulated that companies who employ over 100 people must either require vaccination or weekly COVID testing and compulsory mask wearing for any employee not vaccinated. In a blistering decision, the court called the mandate “fatally flawed” and “staggeringly overbroad” and ordered OSHA to “take no steps to implement or enforce the Mandate until further court order." The judges hearing the case had no patience for OSHA’s claims as to how and why it should be allowed to enforce the mandate, stating:
"To avoid 'giving unintended breadth to the Acts of Congress,' courts 'rely on the principle of noscitur a sociis—a word is known by the company it keeps,'" Engelhardt writes. "Here, OSHA's attempt to shoehorn an airborne virus that is both widely present in society (and thus not particular to any workplace) and non-life-threatening to a vast majority of employees into a neighboring phrase connoting toxicity and poisonousness is [a] transparent stretch." He adds that "any argument OSHA may make that COVID-19 is a 'new hazard' would directly contradict OSHA's prior representation to the D.C. Circuit that '[t]here can be no dispute that COVID-19 is a recognized hazard.'
"The Mandate is staggeringly overbroad," Engelhardt writes. "Applying to 2 out of 3 private-sector employees in America, in workplaces as diverse as the country itself, the Mandate fails to consider what is perhaps the most salient fact of all: the ongoing threat of COVID-19 is more dangerous to some employees than to other employees. All else equal, a 28-year-old trucker spending the bulk of his workday in the solitude of his cab is simply less vulnerable to COVID-19 than a 62 year-old prison janitor. Likewise, a naturally immune unvaccinated worker is presumably at less risk than an unvaccinated worker who has never had the virus." The mandate covers "virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift and a meatpacker working shoulder to shoulder in a cramped warehouse." OSHA "fails almost completely to address, or even respond to, much of this reality and common sense."
In the decision the court also took aim at the rationale behind the mandate, pointing to public statements made by the Biden administration that the purpose of the mandate was to drive up vaccination rates, not workplace safety.
While the stay is currently temporary, the 5th Circuit has signaled that it is will favorably hear motions from the plaintiffs in the case arguing that it should be made permanent. It’s not official, but it looks like the federal vaccine mandate is dead in the water.
In another surprising move, DC mayor Muriel Bowser announced that as of November 22nd the District-wide mask mandate will no longer be in effect. There will be notable exceptions — schools, public transportation, DC government buildings, and group living facilities will still be expected to enforce mandatory mask-wearing.
Private businesses will have the choice to require mask-wearing as they choose, a welcome development for businesses such as DC area gyms that have been asking for permission to swap mask-wearing for proof of vaccination.
The DC area mask mandate has been one of the most controversial ones, as it was never tied to a metric for when it would be lifted and the last time the District had a seven-day death average over one was May 24th. DC’s vaccination rate is very high as well — the number of fully vaccinated adults in DC is at 64.8%, for reference the territory with the highest fully vaccinated rate is Puerto Rico at 74.2%, and for states, it’s Vermont at 72.2%. It’s past time for the mask mandate in DC to be lifted, and it is very good news to hear that it will be happening posthaste.
On the state and city level, several are bucking the CDC and FDA’s recommendations on vaccine booster shots and making them available to any adult who wants one, granted they are at least six months removed from their last Pfizer / Moderna dose or two months past their Johnson and Johnson dose. As of this writing Colorado, California, New Mexico, and New York City have all issued guidance instructing providers to make booster shots available to all qualifying adults, with the most hilarious guidance coming from Colorado Governor Jared Polis, who was so annoyed at the CDC and FDA that he declared the whole state of Colorado a high-risk area thereby making everyone in the state eligible for a booster shot.
I expect to see this trend of states and localities ignoring overly cautious vaccine booster guidelines and opening up the choice to boost or not to boost to individuals. And if you live in a state that isn’t quite there yet, well, let’s just say CVS isn’t asking any questions (wink wink).
And in what may be the best news of all — Pfizer has applied for an emergency use authorization for its COVID treatment pill, which in trials reduced the risk of hospitalization and death by 89% if taken within the first three days of experiencing symptoms. The company also announced that it will allow generic drug manufacturers to produce versions of the treatment, to spread it to middle and low-income countries that are struggling with COVID. While we are still at the mercy of the FDA and their EUA approval timeline, the Biden administration has already committed to purchasing 10 million courses of treatment. With widespread access to both vaccines and treatment that does not require hospitalization, we can finally turn the corner on this pandemic.
With all this good news, I’m hopeful that we are finally starting to see the beginning of the end of COVID-based restrictions and a true return to normality.
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