New York, NY – A ruling by a federal judge to strike down the Biden administration’s mask mandate for air and mass transit travel comes even as the nation has no idea two years into the pandemic how many essential workers in those sectors, or any other, died or were permanently disabled as a consequence of their 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 the founding director of the Migrant Clinicians Network.
On April 20, the Department of Justice appealed the ruling after the CDC confirmed that maintaining the mask mandate for “the indoor transportation corridor remains necessary for the public health” and that it was “a lawful order, well within CDC’s legal authority to protect public health.”
The requirement was first put in place after President Biden took office in January of 2021 and was extended until May 3rd.
The United States is currently closing in on one million deaths and tens of millions of infections with an undetermined on individuals currently suffering with so-called long-haul 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 impacted essential workers and their communities.
ONE 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 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, and while there is some expense to that, it’s nowhere near the expense of all of those workers who end up dying because of what they were exposed to.”
The ruling striking down the mask mandate was issued by 35-year-old US District Judge Kathryn Kimball Mizelle, a Trump nominee who was confirmed by a 49 to 41 vote in the U.S. Senate, after a ruling by the American Bar Association that she was not qualified.
The ruling comes as there’s been a reported uptick in infections, particularly in the Northeast where 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,” Judge Mizelle ruled “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.”
The plaintiffs, who were frequent air travelers who maintained the masks made them subject to anxiety and panic attacks, were represented by the Health Freedom Defense Fund Inc., a non-profit “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 airlines including Delta, United, Jet Blue and American all quickly dropped their mask mandate after the ruling.
“The agencies are reviewing the decision and assessing potential next steps,” said the White House. “In the meantime, today’s court decision means CDC’s public transportation masking order is not in effect at this time.”
“Due to today’s court ruling, effective immediately, TSA will no longer enforce its Security Directives and Emergency Amendment requiring mask use on public transportation and transportation hubs,” said the TSA in a statement. “TSA will also rescind the new Security Directives that were scheduled to take effect tomorrow. 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 warned against “confusion and chaos” adding that “traveling can be stressful enough and safety comes first with respect for everyone utilizing collective modes of transportation.”
“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,” Nelson wrote. “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.”
There was less uniformity in the response from ground-based regional mass transit agencies to the ruling with New York’s Metropolitan Transportation Authority opting to keep it in place in its bus and subway lines as well as on the agency’s suburban railroads.
MTA HOLDS THE LINE
To date, 171 MTA employees have died from COVID, with over 100 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,” Transport Workers Union Local 100 President Tony Utano said in a statement.
Early on in the pandemic, TWU Local 100 members who donned masks were threatened with being written up for wearing masks which the CDC had said needed to be reserved only for the sick and healthcare workers because of an inadequate national inventory. In early April, the CDC reversed that guidance after mounting evidence that asymptomatic individuals were also spreading the deadly virus. Ahead of that guidance, the MTA and TWU had already been distributing PPE to the MTA workforce.
Across the Hudson River, Gov. Phil Murphy ordered New Jersey Transit to lift its mask mandate as did Amtrak.
“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,”Amtrak said in a statement. “Anyone needing or choosing to wear one is encouraged to do so.”
ATU WEIGHS IN
In a statement, Amalgamated Transit Union International President John Costa, which represent 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, and the CDC still recommends wearing masks on public transit and indoor setting to stop the the spread of COVID,” Costa said. “We encourage our members and riders to check the latest updates from their transit agencies while any new policies are implemented.”
He continued. “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 is an internist, infectious disease specialist, epidemiologist at the NYU Grossman School of Medicine & Bellevue Hospital as well as a senior fellow & Editor-at-Large for Public Health at the Kaiser Family Foundation’s Kaiser Health News.
“Part of the reason this has been so confusing is that 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,” wrote Dr. Gounder in response to a query about the federal ruling throwing out the mask mandate.
“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,” Dr. Gounder wrote. “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 and family medical leave or health care coverage if they or a family member gets sick.”