The Fifth Circuit Court got the science wrong on OSHA’s vaccination mandate

In mid-November, a federal judicial panel assigned the Cincinnati-based United States Court of Appeals for the Sixth Circuit the immense task of overseeing legal challenges to the workplace vaccination mandate instituted by the federal Occupational Safety and Health Administration, now pending in 12 of the 13 circuits.

Before the Sixth Circuit was randomly chosen for this task, the New Orleans-based Fifth Circuit preemptively put a hold on the mandate, issuing an opinion that bitingly characterized OSHA’s emergency temporary standard as “staggeringly overbroad.”

But the Fifth Circuit’s opinion got the underlying science completely wrong. For that reason alone, the Sixth Circuit needs to reverse the Fifth’s order and start over with a clean slate that accurately encompasses the scientific evidence on the transmission of SARS-CoV-2, the virus that causes Covid-19, the health consequences of the virus, and the prevention of Covid-19.

The Fifth Circuit Court made three fundamental scientific errors regarding the vaccination mandate, any one of which should vacate its decision.

Ignored: the non-fatal health consequences of Covid-19

The Fifth Circuit judges misleadingly characterized Covid-19 as “non-life-threatening to a vast majority of employees,” ignoring the enormous nonlethal burden of this disease. Nowhere in its 22-page opinion did they refer even indirectly to the millions of people who have been hospitalized with debilitating Covid-19 pneumonia, stroke, pulmonary embolism, acute kidney injury, and other complications. As a physician, I have seen many patients who, weeks after being discharged from the hospital, still can’t walk from their beds to their bathrooms without their blood oxygen saturation dropping to alarming low levels.

The Fifth Circuit’s narrow focus on mortality further ignored the significant proportion of Covid-19 survivors who continue to suffer from shortness of breath, fatigue, difficulty sleeping, chronic olfactory disorders, anxiety attacks, severe depression, and brain-fog-like cognitive impairment months after being stricken with the virus. These long-Covid symptoms have been identified even in less severe, non-hospitalized patients. A great many have experienced a markedly reduced quality of life.

The circuit judges pooh-poohed the urgency of the ongoing Covid-19 menace, sarcastically referring to a “purported ’emergency’ that the globe has now endured for nearly two years…” Yet they ignored the fact that the new, highly transmissible Delta variant began filling up intensive care units only this past summer. Nor did they acknowledge the genuine potential for the emergence of newer, even more potent variants in the coming months, including the potentially devastating Omicron variant.

Ignored: the significant health risks even with relatively low exposure

Accusing the OSHA of wielding a “one-size-fits-all sledgehammer,” the Fifth Circuit judges attacked OSHA for supposedly treating “a security guard on a lonely night shift” no differently than “a meatpacker working shoulder to shoulder in cramped warehouse.” They failed, however, to acknowledge that OSHA’s vaccination mandate already exempted outdoor and remote workers, and already provided for regular testing of unvaccinated workers.

The Court did not seem to understand that, even if one group of workers has a lower risk than another group, the lower-risk workers may still face an unacceptable threat to their health. I had a patient who worked as a security guard and contracted Covid-19 during a change of shifts. The fact that this patient’s potential exposure may have been lower than that of a meatpacker hardly meant he needed no protection.

The published announcement of OSHA’s emergency temporary standard included an extensive compilation of workplace outbreaks reported by state health departments in such disparate industries as health care; construction; public safety; agriculture; leisure, hospitality, and recreation; facility and domestic cleaning services; commercial fishing vessels; waste management; colleges, universities, schools, and childcare; grocery stores; mail and delivery services; correctional facilities; delivery services; office spaces; bars, restaurants, and retail settings; and others. In dismissing this compelling evidence of significant, widespread risk throughout the country’s workplaces, the Fifth Circuit Court faulted OSHA for its inability to point to an infected employee or an outbreak in every workplace on every workday.

The Fifth Circuit judges also failed to understand that a worker’s susceptibility to Covid-19 is the product of two factors: the probability of transmission and the likely severity of the infection. A substantial proportion of workers live with diabetes, high blood pressure, obesity, and other comorbidities associated with more severe cases of Covoid-19. Surely these judges did not expect OSHA to fashion a standard that would distinguish between lonely night watchmen based on their blood-sugar levels.

As if to assure the public that the vaccination problem is already solved, the Fifth Circuit cited the fact that about 80% of Americans aged 12 and older have had at least one vaccine dose. But it failed to acknowledge that 56 million in that age range remain unvaccinated and another 21 million are only partially vaccinated. It ignored the compelling evidence that infected unvaccinated persons are significantly more likely to suffer serious complications than vaccinated individuals with breakthrough infections. It failed to acknowledge recent findings that naturally acquired immunity from prior infection is weaker than vaccine-induced immunity.

Ignored: the rapidly changing scientific evidence on Covid-19

The Fifth Circuit opinion attacked OSHA’s credibility because it initially took positions contrary to the imposition of vaccination mandates. It alleged that “the Administration pored over the U.S. Code in search of authority, or a ‘work-around,’ for imposing a national vaccination mandate.” Yet the evidence is overwhelming that the change in OSHA’s policy was a legitimate response to the increasing gravity of a threat of yet another year — if not years — of waves of surging infections.

When OSHA first drafted an emergency temporary vaccine standard in June 2021, the U.S. had yet to suffer the devastating wave of infections from the highly transmissible Delta variant. It was not anticipated that Delta’s unexpectedly high rate of transmission would require even higher rates of vaccine coverage to achieve herd immunity. The initially high rates of vaccine uptake in the spring of 2021 did not portend the subsequent drop in vaccine participation in the summer and fall. It was far too early to assess the durability of vaccine protection and to evaluate whether booster doses would be necessary.

The Fifth Circuit Court would have us believe that OSHA simply dressed up a general public health issue as a workplace health issue. That’s ludicrous. The containment of the continuing Covid-19 epidemic does indeed continue to pose an enormous challenge for health care providers, school boards, transport systems, entertainment venues, and national, state and local governments. But the fact that the epidemic has touched nearly every aspect of our lives does not delegitimize OSHA’s evidence-based objective of protecting people in the workplace as well.

Jeffrey E. Harris is a primary care physician with Eisner Health in Los Angeles, Calif., and professor of economics emeritus at the Massachusetts Institute of Technology in Cambridge, Mass. The views expressed here are the author’s and do not necessarily reflect the positions of Eisner Health, the Massachusetts Institute of Technology, or any other organization with which he is affiliated.