“Laboratory studies indicate that masks, especially N95 respirators, can help reduce virus transmission. But as Flam notes, “the benefits of universal masking have been difficult to quantify” in the real world, where cloth models predominate and masks may not be clean, well-fitted, or worn properly.
The strongest real-world evidence in favor of general masking comes from a randomized trial in Bangladesh, which found that the use of surgical masks reduced symptomatic infections by 11 percent. That’s not nothing, but it’s a pretty modest effect, and it was achieved with surgical masks worn by adults in conditions that encouraged proper and consistent use. The same study found that cloth masks did not have a statistically significant effect.”
“Given the situation during the omicron surge, there are additional reasons to doubt that mask mandates, even with perfect compliance, had much of an impact. While mandates required shoppers to don masks before entering supermarkets, for example, the risk of transmission in such settings is low, given the amount of time customers usually spend in them, the size of the air space, and typically wide distances between patrons. Conditions in bars and restaurants are more conducive to virus transmission, since customers spend more time there in closer proximity to each other, often while talking. But since people were allowed to remove their masks while eating and drinking, requiring them to cover their faces upon entry was more a symbolic gesture than a serious safeguard.
Beyond the question of how effective masking is in practice, there is the question of what impact mask mandates have on behavior. Even if masking works, that does not necessarily mean mandates do.
An Annals of Epidemiology study published last May found that mask mandates in the United States were associated with lower transmission rates from June through September 2020. “The probability of becoming a rapid riser county was 43% lower among counties that had statewide mask mandates at reopening,” the researchers reported. But the study did not take into account other policies or voluntary safeguards that may have differed between jurisdictions with and without mask mandates. Nor did it look at actual mask wearing, as opposed to legal requirements.
Based on data from various countries and U.S. states from May to September 2020, a preprint study published last June found that general mask wearing was associated with a reduction in virus transmission. But the researchers found no clear relationship between mask mandates and mask use. “We do not find evidence that mandating mask-wearing reduces transmission,” the authors reported. “Our results suggest that mask-wearing is strongly affected by factors other than mandates.”
An August 2021 systematic review of 21 observational studies found that all of them “reported SARS-CoV-2 benefits” from mask mandates “in terms of reductions in either the incidence, hospitalization, or mortality, or a combination of these outcomes.” But “few studies assessed compliance to mask wearing policies or controlled for the possible influence of other preventive measures such as hand hygiene and physical distancing.”
Like the debate about lockdowns, the debate about mask mandates will continue. Because there are so many variables to account for, it is very difficult to isolate the impact of any given policy. But it seems clear that anyone who takes it for granted that mask mandates have played a crucial role in controlling the spread of COVID-19 is making a series of assumptions that are not justified by the evidence.”
“The so-called “freedom convoy” is nominally protesting a vaccine mandate for truckers, implemented in mid-January on both sides of the US-Canada border. But the demonstrations have swiftly ballooned into a broader far-right movement, with some demonstrators waving Confederate and Nazi flags. Protester demands include an end to all Covid-19 restrictions in Canada and the resignation of Prime Minister Justin Trudeau.
The demonstrators, which have included as many as 8,000 people at their peak, have terrorized Ottawa: blockading streets, harassing citizens, forcing business closures, and honking their extremely loud horns all night. Ottawa police, who have proven some combination of unwilling and unable to restore order, have even set up a special hotline to deal with a deluge of alleged hate crimes stemming from the protests. In the first week of February, it received over 200 calls.
Ottawa Mayor Jim Watson has declared a state of emergency, and Trudeau’s government has deployed hundreds of Royal Canadian Mounted Police to the protests. As the situation in Ottawa continues, the freedom convoy movement has expanded across the country. Demonstrators have shut down at least two border crossings between Canada and the United States.
But while the protests are generating a lot of noise and attention, the eruption actually points up a counterintuitive fact: The Canadian far right is weak and ineffectual, especially when it comes to pandemic restrictions.
Canada’s provinces have generally employed strict Covid-19 measures such as school mask mandates and vaccine passports, including during the recent omicron surge. They have enjoyed broad public support in doing so; even the strictest restrictions are less controversial in Canada than in the US. The current demonstration is quite unpopular with the general public, divisive even inside the center-right Conservative party.
This doesn’t mean the movement will accomplish nothing. It has already contributed to a revolt against the Conservative party’s leader and is serving as an important organizing node for far-rightists. The border crossing blockage is putting more stress on the US-Canada supply chain, costing (by one estimation) $300 million a day in economic damage. Internationally, the freedom convoy has inspired copycat efforts in both the United States and France.
But it’s important to understand the broader context in Canada. News coverage of the convoy, especially from sympathetic anchors on Fox News, may lead Americans to believe that Canada is in the midst of a far-right popular uprising. In reality, the mainstream consensus in Canada about Covid-19, and the nation’s institutions in general, is holding. The so-called trucker movement is on the fringe, including among Canadian truckers — some 90 percent of whom are vaccinated.”
“pediatric hospitalizations are occurring almost exclusively among kids who are not vaccinated. Most school-age children are eligible to have been vaccinated, but most school-age children have not yet been vaccinated. Depending on what numbers you look at, only around 50 to 60 percent of kids ages 12 to 17 have been fully vaccinated, and only around 25 percent of kids ages 5 to 11.”
“today is not the day to remove mask mandates in schools. Rather, you want to wait until case rates are much lower than they are today. Not simply for the sake of kids, but also so that children aren’t bringing the disease home. But governors are up against political pressures.
The important thing to highlight here is that many of the governors who have lifted mask mandates in the last couple of days have said that the mandates will be lifted for schools three or four weeks in the future, not today. And three or four weeks in the future, chances are that case rates will be lower, so by then it actually will be much safer to remove the mask mandates without putting kids and communities at high risk, just because there won’t be a lot of circulating COVID.”
“There are a number of observational studies showing that communities and schools that have universal masking have lower rates of COVID-19 among kids in the school, and a couple of studies suggesting higher rates of transmission within schools that forego masking. And of course, there are many more studies in adults and kids in general — really, the preponderance of evidence supports that masks work, and they work for kids as well as for adults.”
“Underlying that split is the question of whether and when COVID-19 counts as a workplace hazard, justifying regulation by the Occupational Safety and Health Administration (OSHA), as opposed to a general risk that Americans face throughout the day, which goes beyond that agency’s statutory mission. All of the justices agreed that OSHA does not have a general license to protect public health, and all of them agreed that the agency does have the power to address COVID-19 in the workplace. But while the dissenters were willing to let OSHA define that problem in general terms, justifying a broad solution covering 84 million employees, the majority thought the agency was obliged to be more specific and discriminating.”
“OSHA has previously issued regulations that addressed communicable diseases. In 1990, it issued a nonemergency standard dealing with bloodborne pathogens, and last June it published a COVID-19 ETS for the health care industry. But both of those rules aimed to protect employees who faced special hazards because of the nature of their work (handling blood samples and treating COVID-19 patients, respectively), and neither of them encouraged or required employers to make vaccination mandatory. That is something OSHA, which has existed for more than half a century, has never done before—a point that the justices emphasized during oral arguments last week and again in yesterday’s decision.
“OSHA has never before imposed such a mandate,” the Court notes. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here….The most noteworthy action concerning the vaccine mandate by either House of Congress has been a majority vote of the Senate disapproving the regulation on December 8, 2021.”
In a joint dissent, Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan argue that OSHA’s unprecedented rule is justified by the unprecedented threat that COVID-19 poses”
“Even as Breyer et al. emphasize the society-wide threat posed by COVID-19, they suggest the risk is especially acute in the workplace, where employees typically gather inside for eight hours a day. That basic fact, the dissenters argue, justifies OSHA’s broad approach, because the coronavirus “spreads mostly without regard to differences in occupation or industry.””
“More generally, the majority says, OSHA has failed to draw appropriate distinctions between different work situations that pose widely varying risks of virus transmission. “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most,” the Court says. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases. Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.””
“The majority nevertheless concedes that OSHA has the authority to address COVID-19 in certain contexts:
“Where the virus poses a special danger because of the particular features of
an employee’s job or workplace, targeted regulations are plainly permissible. We do not doubt, for example, that OSHA could regulate researchers who work with the COVID–19 virus. So too could OSHA regulate risks associated with working in particularly crowded or cramped environments. But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face. OSHA’s indiscriminate approach fails to account for this crucial distinction—between occupational risk and risk more generally—and accordingly the mandate takes on the character of a general public health measure, rather than an “occupational safety or health standard.”””
“the Supreme Court handed down a pair of unsigned opinions that appear to be at war with each other.
The first, National Federation of Independent Business v. Department of Labor, blocks a Biden administration rule requiring most workers to either get vaccinated against Covid-19 or to routinely be tested for the disease. The second, Biden v. Missouri, backs a more modest policy requiring most health care workers to get the vaccine.
There are some things that differentiate the two cases. Beyond the fact that the first rule is broader than the second, the broader rule also relies on a rarely used provision of federal law that is restricted to emergencies, while the latter rule relies on a more general statute.
But the Court gives little attention to substantive differences between the laws authorizing both rules. Instead, it applies an entirely judicially created doctrine and other standards in inconsistent ways. The result is two opinions that are difficult to reconcile with each other.
The NFIB case relies heavily on something known as the “major questions doctrine,” a judicially invented doctrine which the Court says places strict limits on a federal agency’s power to “exercise powers of vast economic and political significance.” As the NFIB opinion notes, the vaccinate-or-test rule at issue in NFIB applies to “84 million Americans” — quite understandably a matter of vast economic significance.
But, if this manufactured doctrine is legitimate, then it’s not at all clear why it doesn’t apply with equal force in both cases. As Justice Clarence Thomas points out in a dissenting opinion in the Missouri case, the more modest health workers’ rule “has effectively mandated vaccination for 10 million healthcare workers.” That’s still an awful lot of Americans!
What if the Biden administration had pushed out a rule requiring 20 million people to get vaccinated? Or 50 million? The Court does not tell us just how many millions of Americans must be impacted by a rule for it to count as a matter of “vast economic and political significance.” And it’s hard to draw a legally principled distinction between 10 million workers and 84 million.
Similarly, in NFIB, the Court notes that the agency which created the broad rule at issue in that case is the Occupational Safety and Health Administration (OSHA) which, as its name suggests, deals with health threats that arise in the workplace, and Covid-19 is not unique to the workplace. “COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the majority opinion notes.
But, as the three liberal justices point out in dissent, OSHA regulates threats that exist both inside and outside the workplace all the time, including “risks of fire, faulty electrical installations, and inadequate emergency exits.” It’s not at all clear why Covid-19 is any different. And the only explanation that the majority opinion gives — that a vaccination “cannot be undone at the end of the workday,” unlike the donning of fire-safety gear — applies with equal force to both the OSHA rule and the narrow health worker’s rule that the Court refused to block. Doctors’ vaccinations can’t be undone any more than an office worker’s can be.
The Court, in other words, appears unable to articulate a principled reason why some vaccination rules should stand and others should fall.”
“The opinions suggest that the Court will uphold rules that five of its members think are good ideas, and strike down rules that five of its members think are bad ideas.”
“OSHA’s ETS, which it published on November 5, demands that companies with 100 or more employees require them to be vaccinated against COVID-19 or wear face masks and undergo weekly virus testing. The U.S. Court of Appeals for the 5th Circuit stayed the ETS on November 6, citing “grave statutory and constitutional issues.” The 5th Circuit extended that stay a week later, when it said the mandate is “fatally flawed” because it “grossly exceeds OSHA’s statutory authority.”
After that ruling, the many lawsuits challenging the mandate were consolidated and assigned by lottery to the 6th Circuit, which the Biden administration asked to lift the 5th Circuit’s stay. In doing so, the 6th Circuit majority criticized the other appeals court for reaching hasty conclusions unsupported by precedent and for failing to properly consider the evidence that OSHA presented in favor of its mandate.
An emergency standard allows OSHA to circumvent the usual rule making process by publishing regulations that take effect immediately. But to avoid the public notice, comment, and hearing requirements that ordinarily apply to OSHA rules, the agency has to identify a “grave danger” to employees “from exposure to substances or agents determined to be toxic or physically harmful or from new hazards.” It also has to show the emergency standard is “necessary to protect employees from such danger.”
In her 6th Circuit majority opinion, Stranch has little trouble concluding that COVID-19 qualifies as an “agent” that is “physically harmful.” Citing the Merriam-Webster Collegiate Dictionary, she says “an ‘agent’ is ‘a chemically, physically, or biologically active principle,'” while “a virus is defined, in part, as ‘any [of a] large group of submicroscopic infectious agents.'””
“Larsen opens her dissent by chiding Stranch for misrepresenting reality. “The majority opinion describes the emergency rule at issue here as permitting employers ‘to determine for themselves how best to minimize the risk of contracting COVID-19 in their workplaces,'” she writes. “With respect, that was the state of federal law before the rule, not after.”
Larsen also suggests that Stranch has pulled a bait and switch. “The majority opinion initially agrees…that an emergency standard must be more than ‘reasonably necessary’; it must be ‘essential,'” she writes. “But then that word, and the concept, disappear from the analysis. What starts as a demand for an ‘essential’ solution quickly turns into acceptance of any ‘effective’ or ‘meaningful’ remedy; and later, acquiescence to a solution with a mere ‘reasonable’ ‘relationship’ to the problem. The majority opinion never explains why ‘necessary’ undergoes such a metamorphosis.”
As Larsen sees it, OSHA “has not made the appropriate finding of necessity.” She notes that “OSHA’s mandate applies, in undifferentiated fashion, to a vast swath of Americans: 84 million workers, 26 million unvaccinated, with varying levels of exposure and risk.” OSHA has the burden of explaining “why the rule should apply to a large and diverse class,” she says, but the agency “does not do so.””
“In some respects, Larsen thinks, OSHA’s judgments are inconsistent with the numbers it cites. “OSHA has determined that no vaccinated worker is in ‘grave danger,’ whereas all unvaccinated workers are,” Larsen writes. “But the government’s own data reveal that the death rate for unvaccinated people between the ages of 18 and 29 is roughly equivalent to that of vaccinated persons between 50 and 64. So an unvaccinated 18-year-old bears the same risk as a vaccinated 50-year-old. And yet, the 18-year-old is in grave danger, while the 50-year-old is not. One of these conclusions must be wrong; either way is a problem for OSHA’s rule.””