It really is a foolish, counterproductive White House talking point now that Omicron is blazing a path through the triple-vaccinated. Psaki’s right that it’s still a “pandemic of the unvaccinated” in the most important sense, as this data from New York State illustrates…

…but like I said last week, at the moment the country is focused on the phenomenally, possibly historically rapid spread of Omicron and is well aware that it’s not just the unvaccinated who are getting sick. The latest high-profile triple-vaxxed victim of the new variant is Alexandria Ocasio-Cortez, who announced last night that she tested positive. New York Times reporter Maggie Haberman has also had three doses and got infected anyway, and it’s not fun. Not deadly but not fun:

Been avoiding this but … covid is the absolute pits. Been lucky it isn't worse, but at its worst it was like a bad flu and it's dragged on/lingered. I'm vaxxed and boostered and still got a breakthrough case. Would welcome folks not continuing to say it's all mild.

— Maggie Haberman (@maggieNYT) January 10, 2022

“Pandemic of the unvaccinated” is a talking point left over from last summer, when it was mainly the unvaxxed who were transmitting the virus. That’s clearly no longer true even though they remain the group that’s doing most of the dying. Peter Doocy (a triple-vaxxed COVID survivor himself) pressed Psaki (another triple-vaxxed survivor) on it today.

Fox News’ Doocy: “I’m triple-vaxed … You’re triple-vaxed, still got COVID. Why is the president still referring to this as a pandemic of the unvaccinated?”

WH Press Sec. Psaki: “You are 17x more likely to go to the hospital if you’re unvaccinated, 20x more likely to die.” pic.twitter.com/hPcxWGCdfX

— The Recount (@therecount) January 10, 2022

Rhetorically flogging the unvaxxed at this point has more to do with the vaccinated venting their frustrations about the endless pandemic than achieving something meaningful. It’s hard to believe that anyone who held out throughout the Delta wave and has held out so far during Omicron will finally move off their position if the White House scolds them just one more time. Even if every remaining unvaccinated adult in the country gave in and got the jab tomorrow, it probably wouldn’t do a lick to spare hospitals from the crush of ER visits they’re facing this month. The first dose appears to do little against Omicron in studies and the second dose can’t be administered until three weeks later. That dose then takes two weeks to take full effect. Five weeks from now Omicron might already be receding.

In fact, as one op-ed in today’s WSJ points out, the rise of Omicron has weakened the case for Biden’s federal vaccine mandate. The strongest argument for the OSHA mandate is preventing transmission in the workplace. Now that the new variant is cutting a swath through the vaccinated population too, that mandate will fail to achieve its purpose.

The Supreme Court held in Jacobson v. Massachusetts (1905) that the right to refuse medical treatment could be overcome when society needs to curb the spread of a contagious epidemic. At Friday’s oral argument, all the justices acknowledged that the federal mandates rest on this rationale. But mandating a vaccine to stop the spread of a disease requires evidence that the vaccines will prevent infection or transmission (rather than efficacy against severe outcomes like hospitalization or death). As the World Health Organization puts it, “if mandatory vaccination is considered necessary to interrupt transmission chains and prevent harm to others, there should be sufficient evidence that the vaccine is efficacious in preventing serious infection and/or transmission.” For Omicron, there is as yet no such evidence…

It is axiomatic in U.S. law that courts don’t uphold agency directives when the agency has entirely failed to consider facts crucial to the problem. In many contexts courts send regulations back to the agency for reconsideration in light of dramatically changed circumstances. If the agency’s action “is not sustainable on the record itself, the proper judicial approach has been to vacate the action and to remand the matter back to the agency for further consideration,” as the U.S. Circuit Court of Appeals for the District of Columbia put it.

A variant that can evade immunity to a much greater degree than previous strains is a “dramatically changed circumstance.” In fact, Omicron is so insanely contagious even among the vaccinated that employers have begun to consider what was until recently unthinkable in the name of coping with severe staffing shortages. They’re allowing, and in some cases even asking, workers with COVID to come into work. Even if they’re symptomatic.

Getting multiple reports @Delta is telling workers across work groups that they should come to work w/ symptoms even if someone in the household tested positive. And test positive workers should come to work after 5 days if the fever is below 100.9, even if still testing positive

— Sara Nelson (@FlyingWithSara) January 6, 2022

As you might expect, pressure to remain on the job is heaviest in the health-care industry, whose desperation to cope with the strain of COVID patients has made the risk of sick doctors infecting those around them one they feel obliged to bear.

Hospitals and long-term care facilities are so short staffed that many are compelling Covid-positive doctors and nurses to return to work, arguing that bringing back asymptomatic or even symptomatic staff is the only way they can keep their doors open amid a spike in hospitalizations…

In New Jersey, a nurse was recently instructed to come to work despite concerns that she had contracted Covid-19, according to a union representative. In Rhode Island, a nursing home and state-run hospital system recently used workers who tested positive after the state updated its guidelines in accordance with the CDC. In Missouri, a hospital is bringing back nurses after five days as long as they are asymptomatic. Health care workers around the country have reported that they are being called in to work even if they suspect they are infectious.

“It’s comparable to March, April, May 2020. I have not seen health care workers as panicked as they are now since that time,” said Debbie White, a registered nurse and president of New Jersey’s largest health care union, HPAE, which opposes the CDC’s guidance.

There’s no legal requirement that your doctor tell you if they have COVID.

It’s not just medical pros who are stuck on the job as they cope with the virus either. On the other end of the income spectrum, low-wage hours workers are fighting through infection in the workplace because they don’t get sick leave to the same degree that higher earners do. “[O]nly 33% of workers whose wages are at the bottom 10% get paid sick leave, compared with 95% in the top 10%,” per the AP. Walmart actually just cut the pandemic-related paid leave it offers to workers from two weeks to one because of the CDC’s new guidance limiting mandatory quarantine after testing positive to five days.

Inside hospitals, it’s a pandemic of the unvaccinated. Outside hospitals, none shall be spared.

I’ll leave you with this mind-blowing stat from virologist Trevor Bedford, his best guess at how many Americans are infected right now.

Given ~680k cases per day, this would in turn suggest 0.8% or 1% of the US being infected with SARS-CoV-2 every day. This would translate to perhaps 5% or 10% of individuals currently infected with SARS-CoV-2 in the US. 15/15

— Trevor Bedford (@trvrb) January 10, 2022