It's been a pleasure to work with @sbagen on this piece. Follow-up law review article in the works. Public health, employment & antidiscrimination laws that emphasize individual blame and personal responsibility are inadequate to the task at hand....
democracyjournal.org/magazine/how-t…
democracyjournal.org/magazine/how-t…
The human interconnectedness that fuels infectious disease pandemics calls for prevention & response measures grounded in mutual aid. Public health has been described as “what we as a society do collectively to assure the conditions in which people can be healthy.” ...
Public health ethicists identify solidarity (interdependence among individuals and groups), mutual aid (reciprocity of support), and communitarianism (connectedness between individuals and their communities) as important foundations for public health practice, and law...
Public health emergency prevention and response measures benefit society as a whole. The burdens should also be shared. But the coronavirus pandemic, like other public health crises, has demonstrated that the solidarity vision of public health is still largely aspirational.
Laws designed to control the spread of infectious disease tend to rely on restrictions that place the onus for behavioral change on individuals. The unequal burdens public health laws impose threaten to divide rather than unite communities.
To be successful, community mitigation doesn't require perfect compliance. It does, however, require widespread public trust & cooperation. As the emphasis on community suggests, these strategies depend on individuals’ ability & willingness to make sacrifices for the common good.
CDC’s guidance for COVID-19 highlights “individual responsibility” as cornerstone of pandemic response. But for community mitigation to work, communities must support individuals in ways that help them comply with recommended behaviors and that minimize secondary harms.
As states ease restrictions on the general population, they're asking people in high-risk groups to shield themselves from exposure. Will the work & educational accommodations & minimal financial supports of the early days of the crisis continue for those in high-risk groups?
Unfortunately, employment law consistently focuses on assessing the worthiness of individuals. It is intensely suspicious that workers are taking advantage of the system.
States have an incentive to reduce benefits (to avoid high taxes that might drive businesses to less generous states), & employers have an incentive to fight their workers’ claims (to avoid higher premiums in the future)....
The results have been predictable. States have gutted their systems for administering unemployment insurance, creating delays and obstacles to obtaining coverage and deterring new claims.
Unemployment is generally available only to those who are “available & able to work,” & who did not voluntarily quit. Workers who leave jobs or refuse to take work for fear of being infected will often be disqualified by these provisions.
There's no other program to pick up the slack. Social Security Disability Ins. requires “severe impairment” that causes inability to perform “any other substantial gainful work that exists in the national economy.” Many people who are especially vulnerable to covid don't qualify.
The Occupational Safety & Health Act could theoretically require employers to mitigate risk in the workplace. But it's consistently underenforced. OSHA “is not doing on-site enforcement and has no COVID-19-specific mandates for employers.” nelp.org/publication/wo…
Although several statutes require accommodation of workers’ medical conditions, they defer to employers’ business interests to such a great extent that they provide little meaningful cushion against the risks of COVID-19.
The ADA mandates “reasonable accommodations,” but courts haven't required open-ended grants of leave to disabled employees or paid leave in any case. The FMLA requires employers to grant only unpaid leave (assuming covid vulnerability even counts as a “serious health condition.")
And although the effects of COVID-related vulnerabilities will exacerbate preexisting racial inequalities, employers will escape liability under Title VII of the Civil Rights Act so long as they can show a business justification for their practices.
We know from decades of public health experience (e.g,. with HIV, substance use, tobacco, and obesity) that when the law requires individuals to change their behavior but fails to provide facilitating social supports, it exacerbates injustice.
A social solidarity approach to the pandemic would prioritize protections for the groups at risk of disproportionate harm (from the virus itself and our responses to it). It would emphasize enabling supports and accommodations over punitive responses to individual “failures.”
To ensure everyone can abide by public health guidelines, we should require employers to take steps, including providing PPE, to make their workplaces as safe as is reasonably possible...
For the especially vulnerable, we should provide paid leave. And when workers refuse to report for assignments that present special risks to them, we shouldn't treat it as a “voluntary” quit or failure to be “available” for work, disqualifying them from unemployment benefits.
But we should, in each of these cases, spread the costs, so that they don't fall arbitrarily on employers who happen to have hired workers with medical conditions that increase vulnerability—& so employers have no incentive to refuse to hire those workers in the first place
Our employment laws frequently aim to protect employers against the “moral hazard” of workers “free riding” off of their largesse. But moral hazard is a risk for governments & businesses as well as individuals...
Employers & the state benefit from public health measures to mitigate the spread of coronavirus. If employers and the state, relying on the shibboleth of “personal responsibility,” refuse to share in the burdens of mitigation measures, they will reap a windfall.
