The Science of Consensus and Masks Again

The sun rises on me this morning in Bonita Springs. It's a far cry from many places in Florida (600 miles from Pensacola), nestled between Ft. Myers and Naples on the gulf coast. This time of year it is a slice of heaven. In the winter, it is an amazing congestion of Hoosiers, Buckeyes, and other mid-westerners escaping the cold and drear. I am here for the Workers' Compensation Claims Professionals (WCCP) 29th Annual Claims Management Conference. I am speaking later today with William Rogner regarding the Florida court's reasonably recent return to "arising out of," see It's not that the Wind is Blowin' (June 2021)
A brief stop at the venue late Monday afternoon found a reception full of people. They transitioned from there to the pool area and began a series of team competitions they called the "Olympics." There was some irony perhaps. Some will recall that the 2020 Olympics were slated for Tokyo last summer and were cancelled due to SARS-CoV-2 concerns. There is some hope they will be held later this summer, but the WCCP beat them to the punch with chronology if perhaps not pure athletic prowess. I am not denigrating the participant's efforts. They were, of course, more athletic and braver than I am.
What didn't I see? A mask. No, not plural ("s"). Not a mask. Perhaps they were there and I missed them, but I didn't see them. Masks were on my mind, though we have not worn them here for weeks (or longer). Recent news from California brought masks back to my present last week when reported "Workers Must Continue to Wear Masks, California Standards Board Rules." Periodically, I still run into the occasional mask-wearer. I respect their personal choice, and I accept that I may have no clue regarding their personal circumstances. I would hope none of us would disrespect someone for such a choice.
But, in California, they are playing mask ping pong lately. On June 3, 2021, the California Occupational Safety and Health Standards Board met for nine hours to consider workplace mask wearing. It is unfortunate that such a board would struggle with a subject like this. Everyone in the safety business has been frustrated over the last two years by the "don't wear a mask," "wear a mask if you want to," "everyone wear a mask," "don't wear a mask" roller coaster. The scientists and experts often disagreed with each other, and sometimes disagreed with themselves.
The best opinions we had to offer collectively and effectively reached a resounding "we just don't know" conclusion about masks. There was no science. That is data-derived, replicable, demonstrative proof of mask efficacy against this virus. Many asked "show me the science," and the response was thin. By science, we mean "The process of observing, asking questions, and seeking answers through tests and experiments," See Britannica Online. There were anecdotal examples cited that suggested some masks could be of benefit, but a great many of us were only able to access masks of questionable efficacy (paper, single layer cotton, etc.). At best, there was scientist consensus, and so we all wore masks.
Then, on May 16, the Centers for Disease Control (CDC) changed its recommendation (again, seemingly on consensus; if not, Show Me the Science!, the experiments, the tests, the data). The CDC changed its consensus. This is, after all, the federal government at work on our behalf. It cannot be wrong, can it? 
According to the CDC - "If you are fully vaccinated, you can resume activities that you did prior to the pandemic." Furthermore, "fully vaccinated people can resume activities without wearing a mask or physically distancing." This is the scientists telling us their latest consensus. Then, bowing to the politics of pandemic, the CDC adds "except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance." At this moment, your reaction might be somewhat confused. What local government official knows more about SARS-CoV-2 than the great consensus that is the CDC? Some consensus is better than other consensus? Admittedly, I find myself confused sometimes. 
So California's Occupational Safety and Health Standards Board debated their scientific hypothesis and conclusion on June 3, 2021 and voted to adopt changes "that would have allowed workers to forego masks only if every employee in a room was fully vaccinated." See, there is trepidation regarding "the vaccinated" being unmasked. Some believe it is possible for vaccinated people to spread the virus to others. It is not clear whether that belief is consensus or if there is science to support the potential. If we accept on faith/consensus that there is potential, one wonders what is the probability? Potential versus probability - we each have the potential to scale Mount Everest - about 4,000 people have in all of history. The potential is high, the probability (.0000005) is low (based only on the current population of the planet).
Before the new Cal OSHA regulation could be implemented, the board voted unanimously, more recently, to withdraw those "changes to (the) COVID-19 emergency temporary standard (ETS)." In seven days the board went from a nine-hour meeting and conclusions to unanimously reversing course. Their concern, it appears, is that "officials" believe "those changes are out of sync with recommendations from the Centers for Disease Control," see above. They also see conflict with the conclusions or recommendations of "the California Department of Public Health." Presumably, that conflict regards the CDC and others essentially saying consensus holds no need for masks if one is vaccinated.
If one is vaccinated. "Aye, there's the rub. For in that time of COVID what uncertainty and doubt may come . . must give us pause." (respect to Billy Shakespeare, or whoever wrote Hamlet). Who is vaccinated? How would you know? You cannot even ask in many settings (HIPPA, privacy, ADA, etc.). We have seen that in retail already. The masks are gone, the signs are gone, and they are not requiring masks. They recognize, it appears, the challenges of policing compliance with a great unknown. The Cal OSHA Chair voiced this somewhat, noting "both enforcement and compliance with the changes adopted last week would be 'unduly difficult.'" That is likely because you cannot tell.
Of course, the government could have made this easier. They could have simply put a microchip in each inoculation. Then we could simply scan each other with our cell phones (yes, there would certainly be an app for that) to see who is or isn't. But, despite the prognostications and protestations there was no chip in the vaccine. And even if there had been, our tinfoil hats would defeat it anyway (or not, you decide).
So, for now, workers in California will wear masks and wait for further guidance. The federal government has reached consensus, but that conclusion will not be the end. There are doubts, fears, and angst. No one should make light of that. What we are each scared of is our own burden (and likely related to our own circumstances - do not ridicule those who chose to wear masks). What government is scared of is simply a reflection of our collective (consensus) fear and angst. 
In some part, this all makes me reflect on the Florida legislative changes in 2000. Someone noticed that Congress has passed the Occupational Safety and Health Act (OSHA) back in 1970. In 2000, someone asked why we still had an occupational safety division in Florida workers' compensation. Apparently, no one had a good answer to that one. Thirty years after the federal government got into the occupational safety business, Florida abolished its safety agency (which some perceived as redundant and others viewed as critical). However one feels, there is no Florida OSHA. But, only a year into the pandemic, OSHA issued occupational guidance for SARS-CoV-2.
In the end, we are a diverse country. Bound together in a federalist system, a constitutional republic. We will see variety and disparity from state to state. Different states have reacted to SARS in their own ways. Florida has largely remained open, and I am grateful to have not had to live through lock-downs, shutdowns, and beat-downs (my sympathies to those who don't live here). Here in paradise we will be gathered today to discuss workers' compensation. I suspect we will be mask-less. Here in paradise, I will be back in the crowds today. Perhaps I will congratulate the Olympic champions with a handshake or even a hug? Perhaps they will fear me, or not. But, I will not wear a mask. I will apparently not be alone.
By Judge David Langham
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    About The Author

    • Judge David Langham

      David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.

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