A ruling by a federal judge that strikes down the Biden administration's mask mandate for air and mass transit travel arrives even as the nation has no idea, two years into the pandemic, how many essential workers in those sectors, or any others, have died or been permanently disabled as a consequence of workplace exposure to COVID.
"There is no question that thousands of people died because they were 'essential workers' that had no choice but to go to work and their workplace was not prepared to have them work safely," said Dr. Ed Zuroweste, assistant professor of medicine at Johns Hopkins School of Medicine and founding director of the Migrant Clinicians Network.
On Tuesday, the Department of Justice said it would appeal the decision if the Centers for Disease Control and Prevention confirmed that the mandate was still required to protect the public health.
The U.S. is currently closing in on one million COVID deaths and tens of millions of infections, with an undetermined number of individuals currently suffering with so-called long COVID. The CDC is working on a national analysis of COVID deaths based on the deceased's occupational exposure to better understand how the infectious disease has impacted essential workers and their communities.
At least a million sidelined
"Long COVID has potentially affected up to 23 million Americans, pushing an estimated 1 million people out of work," reported the U.S. Government Accountability Office last month. "The full magnitude of health and economic effects is unknown but is expected to be significant. The causes of long COVID are not fully understood, complicating diagnosis and treatment. The condition raises policy questions, such as how best to support patients."
While there is no tally for the pandemic's toll on the nation's workforce, Dr. Zuroweste maintains the risk to workers from infectious disease "can be easily mitigated with air transfers and HEPA filters that can make a workplace much safer air-wise. While there is some expense to that, it's nowhere near the expense of those workers who end up dying because of what they were exposed to."
The ruling striking down the mask mandate was issued by U.S. District Judge Kathryn Kimball Mizelle, a Trump nominee who was confirmed by a 49-41 vote in the U.S. Senate, after a ruling by the American Bar Association that she was not qualified. Her ruling comes alongside a reported uptick in infections, particularly in the Northeast, although it has yet to produce a commensurate increase in hospitalizations or deaths.
While conceding that "the public has a strong interest in combating the spread of COVID," Mizelle ruled that "the [mask] mandate exceeded the CDC's statutory authority, improperly invoked the good cause exceptions to notice and comment rule making, and failed to adequately explain its decisions."
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The plaintiffs, air travelers who maintained that wearing masks made them subject to anxiety and panic attacks, were represented by the Health Freedom Defense Fund, a nonprofit "that opposes laws and regulations that force individuals to submit to the administration of medical products, procedures and devices against their will."
Airlines act quickly
The nation's major airlines, including Delta, United, Jet Blue and American, rapidly dropped their mask mandates after the ruling.
According to a White House statement, federal agencies "are reviewing the decision and assessing potential next steps," but "CDC's public transportation masking order is not in effect at this time."
A statement from the TSA said the agency would "no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs, and would rescind new security directives scheduled to take effect this week. It added, "CDC continues to recommend that people wear masks in indoor public transportation settings at this time."
Sara Nelson, president of the Association of Flight Attendants-CWA, issued a statement warning against "confusion and chaos," adding that "traveling can be stressful enough, and safety comes first with respect for everyone utilizing collective modes of transportation."
She continued: "While we look forward to the day masks are no longer required, we also know the federal mask mandate for transportation was critical in its early days for confidence in travel and safety for workers and travelers while mitigation factors such as vaccines, adequate supplies of PPE and testing became more accessible. We urge all leaders to consider a thoughtful transition and implementation to any new policy, which includes the ongoing personal choice of protection for crew and passengers."
NYC transit holds firm
There was less uniformity in the response from ground-based regional mass transit agencies to the ruling, with New York's MTA opting to keep it in place on bus and subway lines as well as the agency's suburban railroads.
To date, 171 MTA employees have died from COVID, with more than 100 of those being members of TWU Local 100. The union welcomed the agency's decision. "We support continuing the mask mandate on subway trains and buses to keep both riders and transit workers safe," Local 100 President Tony Utano said in a statement.
New York City's MTA is keeping mask mandates in place on buses, subways and commuter rail, but New Jersey Transit and Amtrak have lifted theirs.
Early in the pandemic, Local 100 members who donned masks were threatened with being written up for wearing masks, which the CDC said needed to be reserved for sick people and health care workers because of inadequate national inventory. In April 2020, the CDC reversed that guidance after mounting evidence that asymptomatic individuals were also spreading the virus. Ahead of that guidance, the MTA and TWU had already begun distributing PPE to the MTA workforce.
Across the Hudson River, New Jersey Gov. Phil Murphy ordered New Jersey Transit to lift its mask mandate. Amtrak did likewise. "While Amtrak passengers and employees are no longer required to wear masks while on board trains or in stations, masks are welcome and remain an important preventative measure against COVID-19," said the national railroad agency in a statement. "Anyone needing or choosing to wear one is encouraged to do so."
Amalgamated Transit Union International president John Costa, whose union represents 200,000 bus operators and mass transit workers in the U.S. and Canada, urged "calm amidst the uncertainty and confusion" caused by the ruling.
"While many transit agencies have lifted the mask mandate, not all have done so," Costa said in a statement, "and the CDC still recommends wearing masks on public transit and indoor settings to stop the the spread of COVID. We encourage our members and riders to check the latest updates from their transit agencies while any new policies are implemented.
"We can also not ignore the fact that the mask mandate required our members to deal with unruly passengers who refused to comply with the mandate as we continue to urge transit agencies to protect our members on the job."
Dr. Celine Gounder, an internist, infectious disease specialist and epidemiologist at the NYU Grossman School of Medicine and Bellevue Hospital, said the overall picture on mask mandates remains confusing because "most public health powers reside with the states, and that means you're going to get a lot of variability with respect to what measures are mandated from state to state."
She continued: "We are moving into a phase of the pandemic when individuals are being asked to assess their own risk and take action to protect themselves. This will be challenging so long as individuals are not armed with easily accessible information that they know how to interpret; they don't have free, convenient, rapid, equitable and stigma-free access to the tools to protect themselves, including masks, testing, treatment and vaccination; and they don't have safety nets like paid sick leave and family medical leave or health care coverage if they or a family member get sick."
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