The COVID-19 Pandemic: Martin Luther King, Jr. Day and health equity, and the Supreme Court decidesJan 18, 2022
Yesterday was Martin Luther King, Jr. Day, a time for reflection on what has happened since his assassination on April 4, 1968—a day that I will never forget. In the more than five decades since his death, some progress has been made towards achieving an equitable society, but not enough. We have had far too many reminders that structural racism persists long after the Civil Rights Era. And the renewed and invigorated efforts to restrict and alter voting access are appropriately characterized as having racial overtones and as a threat to democracy. Former President Jimmy Carter, now 97-years-old, spoke of his concerns in a January 5 editorial: “I Fear for Our Democracy.” Denying voting rights will have an unfavorable impact on the social determinants of health.
Two recent papers illustrate how inequities remain embedded in healthcare delivery and public health. A new report in the CDC’s MMWR and Morbidity and Mortality Weekly Report documents lower use of monoclonal antibody treatment for COVID-19 in Black, Asian, and Other race and Hispanic patients in data from 41 healthcare systems. Two years into the COVID-19 pandemic, disparities remain in occurrence, prevention, and treatment—even though repeatedly documented. Unanswered is the question as to why they persist? And the corollary—how do we eliminate them? A descriptive study, led by my former Hopkins colleague Francesca Dominici and published in Nature last week, documents disparities in air pollution exposure across the U.S. population and among ethnic groups. The paper shows that the relative disparities have grown, even as regulations have improved air quality generally. Air pollution exposures are driven by residence locations, which reflect long-standing segregation practices and the drivers of where polluting industries and roadways are placed. Time to reflect on what needs to be done to eliminate these disparities. The Environmental Protection Agency of the Biden Administration does have a core emphasis on environmental justice.
Last week, the Omicron variant continued its surge in the United States and in Colorado. If there is good news, it is reflected in the beginnings of a downturn in some parts of the Northeast, including New York City. If Colorado follows the epidemic curves of these locations, we should be heading to a peak soon, albeit a peak that will threaten our healthcare system.
The Supreme Court issued a critical decision last week related to the Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA) to reduce transmission of SARS-CoV-2 in workplaces. The Court consolidated applications for stays from the ETS into two groups, held hearings on January 7, and released its opinion on January 13 with the majority (6 vs 3) granting the applications to stay the rule. Recall that OSHA’s ETS called for workers in workplaces with 100 or more employees to be vaccinated against SARS-CoV-2 or to have a program of masking and weekly testing in place. For the first six months of the ETS, OSHA estimated that it would save more than 6,500 lives and prevent more than 250,000 hospitalizations.
The majority was not swayed by OSHA’s rationale for the ETS, finding it an overreach of OSHA’s authority and characterizing it as a public health measure rather than as an occupational safety or health standard. The majority also finds that “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most.” On this point, David Michaels (faculty member at the George Washington School of Public Health and former Assistant Secretary of Labor for OSHA) and Jordan Barab (former Assistant Secretary of Labor for OSHA) see an opportunity to move forward by promulgating a risk-based rule. They also characterize the majority opinion as displaying “some glaring misunderstandings of the laws governing OSHA’s responsibilities.” In The New York Times, Linda Greenhouse probes the decision as the Court taking a stand on the scope of administrative powers.
The three justices in the minority find that the ETS falls within OSHA’s mission to “protect employees from ‘grave danger’ that comes from ‘new hazards’ or exposure to harmful agents.” I quote in full a paragraph from the minority that reaches to the core of the decision: “Who decides how much protection, and of what kind, American workers need from COVID-19? An agency with expertise in workplace health and safety, acting as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?” This decision comes as businesses are struggling to stay open and core services are threatened because of the unchecked spread of the Omicron variant. What is your answer to the minority's question?
In a second decision, also rendered on January 13, the Court upheld, by a 5-4 majority, the rule requiring vaccination of healthcare workers at facilities receiving federal funds. This rule, issued by the Secretary of Health and Human Services, was viewed as falling within the scope of authority of the secretary. These decisions have implications moving forward as we seek to move away from pandemic waves to controlled endemicity. Decisions by the courts can support or restrain use of fundamental public health tools.
Now for a few low points in the pandemic scrum. You may have missed the account of the outcome of House Resolution 22-1003 in the Colorado Legislature, which has the purpose of allowing safety regulations in the Capitol during the current Omicron crisis. Not surprisingly, the political divide surfaced around this measure, which passed along party lines. Staff members and the public are required to use masks in committee rooms, the galleries and chambers, while lawmakers are only encouraged to wear them. Here is an argument offered by Republican Representative Stephanie Luck: “People who decide not to wear a mask aren’t choosing to put other people in harm’s way…They’re looking at a different set of facts.” A reminder: “alternative facts” dates to Kellyanne Conway’s response to White House Press Secretary Sean Spicer’s claims about the number of attendees at the inauguration of President Trump. Scientific evidence does not accommodate "a different set of facts."
The Novak Djokovic saga has ended as he was dispatched out of Australia over the weekend. While his story received far too much attention, it raised important questions: should the world’s leading tennis player be allowed to pursue his own course, seemingly based on his beliefs, and violate regulations and norms? There were many twists and turns over the days of the saga, including revelations of misstatement on his visa application form and public appearances unmasked in the days after he tested positive for COVID-19. In the end, his visa was revoked for a second time by the Australian immigration minister on grounds of “health and good order”. While the Australian authorities' approach to Djokovic’s visa was bumbled at times, his plight received little sympathy from Australians who have endured stringent lockdowns. The saga portends increasingly stringent and enforced vaccination requirements for travel. One retired tennis player was quoted in The New York Times as saying: “The law is one for all, but interpretations are different for all.” This is a critical point for public health protection; the interpretations of regulations and other requirements need to be the same for all.
Stay well and stay cautious for now,
Jonathan Samet, MD, MS
Dean, Colorado School of Public Health