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Written by Jeffrey E. Harris December 2, 2021

In mid-November, a federal judicial team assigned to the U.S. Court of Appeals for the Sixth Circuit in Cincinnati to oversee the legal challenges faced by the Federal Occupational Safety and Health Administration’s workplace vaccination authorizations. 12 in 13 circuits.

Before randomly selecting the Sixth Circuit for this task, the Fifth Circuit in New Orleans preemptively shelved the task and issued an opinion describing OSHA's emergency provisional standards harshly as "too broad."

But the opinion of the Fifth Circuit completely misunderstood basic science. For this reason alone, the sixth tour needs to reverse the order of the fifth tour, start over, and accurately include scientific evidence on the spread of SARS-CoV-2 (the virus that causes Covid-19), as well as the virus, and prevention Covid-19.

The Fifth Circuit made three basic scientific errors in the authorization of vaccination, any of which should revoke its decision.

The judges of the Fifth Circuit misleadingly described Covid-19 as “not life-threatening to the vast majority of employees” while ignoring the huge non-fatal burden of the disease. In their 22-page opinion, they did not even mention indirectly the millions of people hospitalized due to Covid-19 pneumonia, stroke, pulmonary embolism, acute kidney injury and other complications. As a doctor, I have seen many patients whose blood oxygen saturation drops to a shockingly low level several weeks after they are discharged from the hospital, and they still cannot walk from the bed to the bathroom.

The narrow focus on mortality in the Fifth Circuit further ignored a large part of Covid-19 survivors, who continue to suffer from shortness of breath, fatigue, sleep difficulties, chronic olfactory disorders, anxiety, severe depression, and cerebral fog-like cognitive impairment. Troubled after being infected by a virus. These long-term Covid symptoms have been found even in non-hospitalized patients who are not too severe. The quality of life of many people has dropped significantly.

The circuit judges scoffed at the urgency of the ongoing Covid-19 threat, ironically referring to “the so-called'emergency' that the world has now endured for nearly two years...” but they overlooked the fact that it is new and high. The spread of the Delta variant didn't start filling the intensive care unit until last summer. They also failed to acknowledge the true potential of newer and more effective variants in the coming months, including the potentially destructive Omicron variant.

The judge of the Fifth Circuit accused OSHA of wielding a "one size fits all sledgehammer" and criticized OSHA's alleged treatment of "lone night shift security guards" and "meat processors working side by side in cramped warehouses." "However, they failed to acknowledge that OSHA's vaccination requirements have exempted outdoor and remote workers from responsibilities, and they have provided for regular testing of unvaccinated workers.

The court does not seem to understand that even if one group of workers is at a lower risk than another group, workers with lower risks may still face unacceptable health threats. I have a patient who is a security guard who contracted Covid-19 during the shift. The fact that the patient’s potential exposure may be lower than that of the meat processor does not mean that he does not need protection.

The issued OSHA Emergency Interim Standards Bulletin includes an extensive compilation of workplace outbreaks in different industries such as health care reported by the State Department of Health; construction; public safety; agriculture; leisure, hospitality and entertainment; facilities and household cleaning services; commercial fishing boats; Waste management; colleges, universities, schools, and nurseries; grocery stores; mail and delivery services; correctional facilities; delivery services; office space; bars, restaurants, and retail spaces; and others. The Fifth Circuit rejected this convincing evidence, which showed that the country’s workplaces had significant and widespread risks, and accused OSHA of failing to point out the existence of infected employees in every workplace on every working day. Or break out.

The judges of the Fifth Circuit also failed to understand that workers’ susceptibility to Covid-19 is the product of two factors: the possibility of transmission and the possible severity of the infection. A large proportion of workers suffer from diabetes, hypertension, obesity, and other comorbidities associated with more severe Covoid-19 cases. Of course, these judges did not expect that OSHA would develop a standard to distinguish lonely night watchmen based on their blood sugar levels.

As if to assure the public that the vaccination issue has been resolved, the Fifth Circuit cited the fact that approximately 80% of Americans 12 years of age and older have been vaccinated at least once. But it failed to admit that 56 million people in this age range were still unvaccinated, and another 21 million were only partially vaccinated. It ignores the convincing evidence that unvaccinated infected people are more likely to have serious complications than vaccinated breakthrough infections. It did not acknowledge the recent discovery that the naturally acquired immunity from previous infections is weaker than the vaccine-induced immunity.

The opinion of the Fifth Circuit attacked the credibility of OSHA because it initially took a position contrary to the mandatory vaccination requirements. It claims that “the government has carefully studied the U.S. Code to seek authority, or'workarounds,' to enforce the national vaccination mission.” However, overwhelming evidence shows that the OSHA policy changes are correct for another year (if not the number). Years) a reasonable response to the increasing threat of a surge of infections.

Weekly summary of our opinion column, with insights from industry experts.

When OSHA first drafted an emergency interim vaccine standard in June 2021, the United States had not yet suffered a wave of devastating infections caused by the highly disseminated Delta variant. Unexpectedly, the unexpectedly high transmission rate of Damei Airlines requires higher vaccine coverage to achieve herd immunity. The initial high vaccination rate in the spring of 2021 did not herald the subsequent decline in vaccination rates in the summer and fall. It is too early to assess the durability of vaccine protection and whether a booster dose is needed.

The Fifth Circuit will convince us that OSHA is simply disguising general public health issues as workplace health issues. This is ridiculous. Containing the ongoing Covid-19 epidemic does continue to pose huge challenges to healthcare providers, school boards, transportation systems, entertainment venues, and national, state, and local governments. However, the fact that this epidemic has touched almost every aspect of our lives does not make OSHA's evidence-based goal of protecting workplace personnel out of legitimacy.

Jeffrey E. Harris is a primary care physician at Eisner Health in Los Angeles, California, and an emeritus professor of economics at the Massachusetts Institute of Technology. The views expressed here are those of the author and do not necessarily reflect the position of Eisner Health, MIT, or any other organization to which he belongs.

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