A single decision, by a three panel court of appeals in Louisiana consisting of two Trump appointees and one Reagan appointee, issued a decision significant enough to require a forecast alert and re-forecast of the COVID-19 death toll. An incremental 35,000 to 45,000 people will die over the next three months of COVID-19 as a result of the court stay earlier this month.
Issuing the stay, the two Trump appointees issued their opinions. (the Regan appointee did not). Federal Judge Kurt Englehadt instructed OSHA to “take no steps to implement or enforce the mandate” after claiming COVID-19 is neither a “grave danger” nor a “new hazard,” standard that must be met for OSHA to have the emergency power to enact such a rule. Judge Suart Duncan noted the courts “expect Congress to speak clearly when authorizing an agency to exercise powers of ‘vast economic and political significance,’” noting that “OSHA’s rule reaches two-thirds of all private-sector workers in the nation” and compels covered employers to make employees get vaccinated or get weekly tests and keep records.
As I understand it, OSHA is responsible for workplace safety and after the full FDA authorization of COVID vaccines, OSHA issued a rule that all employers with 100 or more employees either require full vaccination by January 4th or require weekly testing. The rule allowed for time off to get vaccinated and recover. Weekly testing offered an option for those that choose not to be vaccinated and the employer could decide to cover the nominal expense or have unvaccinated employees pay the expense. As the plan for large employers to require vaccination or weekly testing was announced by President Biden on September 9th, 2021, after which I included the relevant details in my forecasts.
However, as a result of the stay order and slower vaccination rates, I expect the November death toll to rise to 779,973 (an incremental 5,333 deaths). I expect the December death toll to rise to 815,660 (an incremental 8,167 for the month and 14,424 deaths for the two months). I expect the January death toll to be significantly higher as herd immunity will now be achieved through the unvaccinated becoming infected and either recovering or dying rather than through a significant increase in vaccinations.
Importantly, this shift in timing of when the country exits the pandemic is critical because the Christmas and New Years shopping season and family gatherings should have benefited from the extra protection afforded by the incremental vaccinations and testing under the OSHA rule. Without this added protection of vaccinations, testing and masks, we should now expect infections to be significantly higher over the Christmas shopping and family gathering dates. We should expect a post Christmas and New Year’s surge that carries significant incremental deaths through January.
As documented in my and others research, the pandemic shifted consumer spending from services to goods. This shift is a key driver of supply chain bottlenecks and inflationary pressures today. By prolonging the pandemic, this stay order is negatively impacting the economy. Specifically, it reduces the workforce as unvaccinated workers are more likely to become infected, hospitalized and die. It slows the shift back to services. It adds additional inflationary pressure as both the reduction in workforce due to COVID-19 illness or concern of illness and increased purchase of goods over services result in immediate inflationary pressures. More significantly, the stay order will predictably lead to significantly more COVID-19 deaths over the next 90 days. If that’s not “grave danger” as Judge Engelhart opinioned, it is certainly a lot more graves. It is worth noting that the Judge’s opinion makes note of “purported emergency the entire globe has endured for for nearly two years” but seems completely unaware of 1) this wave is a wave caused by and perpetuated by the unvaccinated and 2) other democracies have enacted reasonable public health measures which he argues are unnecessary.
This surge began taking an astonishing number of lives, starting in August. The forecasts from the CDC, IHME’s and my forecast all significantly underestimated the death toll due to unvaccinated people (see tables in Accuracy of Forecast section). Unvaccinated people are more likely to become infected and spread Delta to others. Unvaccinated people become hospitalized 18x higher than vaccinated people, according to our contact tracing and genomic sequencing research. Over 95% of the deaths in August, the month immediately preceding OSHA rule, were among unvaccinated, according to the CDC.
Countries in the EU like Denmark use vaccine passports and are extending their use for employment - a practice quite similar to what the OSHA rule would have implemented. In fact, many democracies have gone much further. Austria, responding to this wave fueled by unvaccinated people, recently instituted a lockdown for unvaccinated people 12 and over. Unvaccinated people are not allowed to leave their home unless it is for essential reasons. In justifying the lockdown for the unvaccinated, Austria’s Prime Minister referred to their vaccination rate of 65% as shamefully low, and correctly notes that unvaccinated people are 70% more likely to be affected by the virus. I’m not suggesting the US take the same action, even though Austria vaccination rate is much higher than the US rate, and nearly double the rate of most counties in the states the Fifth Circuit Court covers, and the actions of the unvaccinated put at risk the economic welfare of the country and the health and safety of co-workers and customers that are vaccinated. Rather, I am pointing out that accessing what is a reasonable response to this wave propelled by the unvaccinated should include a review of what other western democracies have determined is an appropriate response. As of last week, the US has higher deaths per million than Austria (and the majority of counties in the EU).
It is unclear what basis the Judge used to determine reasonable measures versus what he termed “over-reach” given that most democracies have used broader powers than envisioned in the OSHA rule. It is unclear what standard constitutes an emergency for Judge Engelhardt, if surging deaths among unvaccinated with a forecast of 150,000 avoidable deaths over three months from the time the OSHA rule was developed isn’t an emergency.
There are approximately 84 million Americans that work for companies that are covered by this rule, mostly adults. Companies like Tyson Foods and United Airlines that have required vaccinations have achieved 91% and 99% vaccination rates respectively versus the current adult vaccination rate in the US of nearly 70% (including over 85% of those over 65 and 58% of all Americans) at the time I issued the last monthly Forecast (November 2021). My projections expected the vaccination rate to increase among workers where the rule applied to approximately 85% to 90%.
My forecast calculated that this rule would add about 16.4 million incremental vaccinated adults in the US by the end of the year. Furthermore, the additional vaccinated population would result in the US achieving a level of herd immunity protection (cumulative immunity of 85% per model) around December 8th, just after the post Thanksgiving surge, and before the critical Christmas and New Year’s holiday gatherings. However, without these vaccinations, infections will grow at a faster rate, as will hospitalizations and deaths. Without these vaccinations, the same level of herd immunity protection will not be achieved before the December holiday season, but rather after it, some time around mid January.
Specifically, the model predicted 2nd dose vaccinations to increase to 62% among the total US population by the end of November and 67% by the end of the year. Since some protection begins weeks earlier, with the first dose, the model expected downward pressure on COVID-19 transmission, hospitalizations and deaths. However, the stay order issued by the Fifth Circuit Court of Appeals based on complaints filed in Texas, Mississippi and Louisiana effectively neutralizes the positive benefit expected in the model.