How the Law Harms Public Health

The pandemic highlights the urgent need to change the legal paradigm from individual responsibility to social solidarity.

By Lindsay F. Wiley Samuel R. Bagenstos

Tagged black lives mattercoronavirusHealth CareInequalityPublic Healthworkers

The coronavirus pandemic—and governmental responses to it—have highlighted the critical but often neglected connections between public health, employment, and antidiscrimination law. In March, many states instituted stringent infection controls for nursing and long-term care facilities, including instructions that any staff member with “signs or symptoms of a respiratory infection should not report for work.” But facilities are understaffed, and employees—who are disproportionately women of color—are paid low wages with limited sick leave, driving some to report for duty at multiple jobs, even if they become infected. In April, the President invoked the Defense Production Act to require crowded meat-processing plants to stay open. His Administration indicated it would protect the plant operators from liability for illnesses and deaths among workers. In May, several governors lifted executive orders that had required the general population to stay at home. Some replaced them with orders mandating that people over 65 and those with specified (but very common) medical conditions—which disproportionately affect African Americans, Native Americans, and people with disabilities—continue to shelter in place. As governors eased mandatory business closures, more workers faced tragic choices between returning to work and shielding themselves and their family members from exposure while risking their livelihood. A public health response to the coronavirus pandemic is serving important interests for the whole of society. Yet the sacrifices it demands and the deaths it fails to prevent have exacerbated disparities along class, race, gender, and disability lines. The injustice of disproportionate pandemic burdens has been brought to the fore by protesters calling out COVID-19 as one of many ways in which anti-black racism kills.

Many of us know these to be policy failures. But it’s important to understand that they are also failures of law. The bodies of law that should protect marginalized workers from being singled out to bear especial burdens—notably those involving employment law and antidiscrimination law—do not effectively serve to lessen those disparities. Instead, they encourage states and employers to offload the burdens of necessary public health interventions onto the overlapping groups of disempowered workers, including racial and ethnic minorities, women, and disabled people. Our response to the pandemic should instead prompt a shift to a more solidaristic approach to the laws that protect marginalized groups, to match the focus on social good that, in theory, animates public health.

Public Health Law and Individual Responsibility

Laws designed to control the spread of infectious disease take human interconnectedness as their starting point. Yet they 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 slow the spread of coronavirus infection, in the absence of an effective vaccine or treatment, state and local governments have implemented “community mitigation” strategies. Community mitigation relies on non-pharmaceutical interventions to separate the infected and exposed from the unexposed (via isolation and quarantine orders) and increase protective behaviors like hand-washing, mask-wearing, and social distancing among the general population.

Social distancing measures include orders to close schools and other places people tend to congregate indoors, bans on crowded gatherings, requirements to maintain a physical distance from others outside the home, and (in their most extreme form) prohibitions on all non-essential on-site business operations and requirements that people stay at home except for essential errands and work. To be successful, community mitigation does not require perfect compliance. It does, however, require widespread public trust and cooperation.

As the emphasis on community suggests, these strategies depend on individuals’ ability and willingness to make sacrifices for the common good. Media coverage has highlighted intentional defiance from a small number of protesters and privileged flouters of public health guidelines, but as repeated polls have shown, most people trust recommendations and want to comply.

CDC’s community mitigation guidance for COVID-19 highlights the importance of “individual responsibility” as a cornerstone of pandemic response. But for community mitigation to work, communities must support well-intentioned individuals in ways that help them comply with recommended behaviors and that minimize secondary harms. Some laws governing mandatory quarantine for exposed or infected individuals contemplate modest financial and legal protections, out of recognition that practical and ethical considerations demand some degree of support for sacrifices that serve the common good. But too often, such supports and protections are provided through a hodgepodge of temporary and woefully inadequate fixes. Social supports and legal protections to enable the general population—or just those in the highest-risk groups—to stay at home as much as possible, until the virus is no longer circulating in their communities, are even less well established. Ample private space, technological work-arounds, flexible work demands, minimal exposure to policing, and minimal dependence on “elective” medical care make social distancing more manageable for many of those who are affluent, white, and able-bodied. Meanwhile, people exposed to racism and disability discrimination or low socioeconomic status entered this pandemic in worse health than their more privileged peers.

Long-standing disparities in the underlying chronic conditions on which COVID-19 preys (e.g., diabetes, hypertension, and lung disease) stem from increased psychosocial stress, poor water and air quality, substandard housing, unhealthy food environments, and unequal access to health care for prevention and disease management. Groups facing these disadvantages are also more likely to live and perform essential work in congregate settings (e.g., jails, prisons, nursing homes, factories) where the coronavirus spreads like wildfire. Many low-wage workers—who are disproportionately women, people of color, and immigrants—are performing work in high-risk settings with inadequate protective gear.

As some states ease restrictions on the general population, they are asking people in high-risk groups to shield themselves from exposure. People over 65, people with disabilities that make them more vulnerable to severe COVID-19 disease and death, along with their household members, may not be able to safely return to work or school when others do. Will the work and educational accommodations and minimal financial stimulus payments made in the early days of the crisis continue for those who are in high-risk groups? Relegating elderly and medically vulnerable people with disabilities to isolation at a time when others are returning to some degree of social, economic, educational, cultural, and civil activity outside the home threatens to widen already unjust divides.

The Individual-Responsibility Focus of Employment and Antidiscrimination

If public health measures are to serve society as a whole, the law should protect groups that bear particular burdens, including people who are unable to do paid work from home and those whose age, disabilities, and medical conditions (or those of a household member) require them to shield themselves from the virus. Unfortunately, employment law consistently focuses on assessing the worthiness of individuals. It is intensely suspicious that workers are taking advantage of the system.

Unemployment insurance is our nation’s primary means of protecting workers against the harshest consequences of temporary economic downturns. But several crucial aspects limit its effectiveness as a protection. When it set up unemployment insurance during the New Deal, Congress deferred to older notions of federalism and provided that states should administer the program. It gave individual states broad discretion to set benefits above a very low federal floor. Employers finance the system through “experience rated” premiums—the more claims are accepted against a particular employer, the more that employer will be forced to pay to insure its workers in the future.

States thus have an incentive to reduce benefits (to avoid high taxes that might drive businesses to less generous states), and 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. Although Congress temporarily expanded unemployment insurance in its stimulus legislation, these administrative burdens have significantly blunted the impact of Congress’s action.  The Economic Policy Institute estimates that they kept between 8.9 and 13.9 million people from filing for unemployment insurance in the wake of the coronavirus pandemic. And as Georgetown University law professor Brian Galle wrote last year in the Arizona State Law Journal, “employers have grown considerably more skilled and aggressive than in the past, resulting in more workers being found ineligible or cut off from benefits before those benefits expire.” Although it is too soon to see concrete evidence, this development is bound to affect workers who claim unemployment during the pandemic.

States have also limited eligibility for benefits to ensure that workers do not obtain them when they can in fact work. Unemployment is generally available only to those who are “available and able to work,” and who did not voluntarily leave their previous positions. Workers who leave jobs for fear of being infected with the coronavirus or refuse to take particular jobs because of the same concern will often be disqualified by these provisions. Iowa Republican Governor Kim Reynolds has declared that, “If you’re an employer and you offer to bring your employee back to work and they decide not to, that’s a voluntary quit.” Reynolds has urged employers to report to the state those workers who refuse to return. Even Ohio, which has been comparatively more aggressive in responding to the pandemic, has encouraged the reporting of employees who do not come back to work when their businesses reopen. The Trump Administration has supported these efforts, on the ground that they will “guard against fraud and abuse” of the unemployment system. The voluntary-quit and available-for-work rules thus create a deadly dilemma for people who are especially vulnerable due to medical conditions.

And there exists no other more general program of social assistance that will pick up the slack. Social Security Disability Insurance would be the most likely candidate. But the Social Security Act provides that workers cannot qualify unless they can demonstrate that they have a “severe impairment” that makes them unable to perform not only their past work but “any other substantial gainful work that exists in the national economy.” Many people who are especially vulnerable to the coronavirus will not satisfy that demanding standard. For those who can, the process can take months or even years—hardly timely for those who have lost their source of livelihood.

Nor does other workplace regulation protect those who are vulnerable to COVID-19. The Occupational Safety and Health Act could theoretically require employers to mitigate the risk of transmission in the workplace. But that law is consistently underenforced. As the National Employment Law Project recently reported, the Occupational Safety and Health Administration “is not doing on-site enforcement and has no COVID-19-specific mandates for employers.” The agency “has a total of 862 inspectors to cover millions of workplaces”—the lowest number of inspectors in 45 years. One might expect workers’ compensation to address the problem. But workers’ compensation does a notoriously poor job of responding to diseases (as opposed to injuries) linked to the workplace. Studies have shownthat the program covers only about a fifth of the cost of occupational disease.

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 Americans with Disabilities Act mandates “reasonable accommodations,” but the courts have interpreted that phrase not to require open-ended grants of leave to disabled employees, nor to require paid leave in any case. The Family and Medical Leave Act, too, requires employers to grant only unpaid leave (assuming a pre-existing vulnerability to coronavirus infection even counts as a “serious health condition”covered by the statute). Congress recently adopted a temporary paid-leave program in response to the pandemic, but, as Bloomberg Law reported, “a majority of the workforce isn’t eligible for the benefits.” These laws thus leave workers on the horns of the same deadly dilemma.

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. Title VII prohibits actions that cause racial disparities, but it explicitly provides that an employer can avoid liability by showing that the challenged practice is “job related” and “consistent with business necessity.” A business justification would not save a practice that an employer adopted with racially discriminatory intent, but workers areunlikely to be able to prove that sort of animus.

In all of these respects, the rules of antidiscrimination law protect employers against costs that we think society ought to bear, but the rules of unemployment insurance and social welfare law ensure that society won’t bear those costs. Working people, members of minority groups, and people with disabilities are left to fend for themselves.

A Social Solidarity Approach to the Pandemic

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.” Embracing a solidarity approach to the pandemic will involve interventions across multiple sectors beyond the scope of this essay, but employment and antidiscrimination law are an important starting point because of how entwined they are with community mitigation strategies.

To ensure that everyone can abide by public health guidelines, we should require employers to take steps, including providing employees with adequate personal protective equipment, to make their workplaces as safe as is reasonably possible. For those with health conditions that nonetheless make them especially vulnerable, we should provide paid leave. And when workers refuse to report for assignments that present special risks to them, we should not treat that as a “voluntary” quit or failure to be “available” for work that disqualifies them from unemployment benefits. (Some states, such as California, appear to be adopting just such a generous interpretation of their unemployment insurance laws.) But we should, in each of these cases, socialize the costs, so that they do not fall arbitrarily on the employers who happen to have hired workers with medical conditions that increase vulnerability—and so employers have no incentive to refuse to hire workers with those conditions in the first place.

Beyond just a time of crisis, we should consider structural changes in our employment laws that provide universal protections. We should guarantee paid family care and medical and sick leave to all workers, paid for by federal revenues rather than experience-rated insurance premiums.  We should also be fully funding occupational safety and health enforcement—and give workers the right to sue employers for Occupational Safety and Health Act violations, so they need not depend on the political winds blowing in the right direction. Workplace safety requirements should be bolstered with robust whistleblower protections, so that workers who call out risks on the job can take their employers to court if their bosses retaliate against them for speaking out. (Current federal lawallows such whistleblowers to file an administrative complaint—but only within a tight 30-day timeframe—at which point it is up to the Department of Labor to decide whether to move forward with a suit.) And we should take the long-overdue stepof moving the unemployment insurance system to the federal government, so that benefit levels are not subject to the interstate race to the bottom.

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 and businesses as well as individuals. Employers and the state benefit from public health measures that reduce the spread of coronavirus. But those measures place particular burdens on the most vulnerable people—those for whom infection will be especially dangerous and costly to treat. If employers and the state, relying on the shibboleth of “personal responsibility,” refuse to share in those burdens, they will reap a windfall. Our coronavirus response is meant to protect the health and welfare of society as a whole. We should ensure that the costs are spread as widely as the benefits. If our current crisis can help us rediscover such a commitment to solidarity, it will have had at least some meaningful benefit. Like the Black Lives Matter protests occurring in every state, the coronavirus pandemic should prompt a national reckoning with how our laws determine health, safety, and wellbeing—often with unjust results.

Read more about black lives mattercoronavirusHealth CareInequalityPublic Healthworkers

Lindsay F. Wiley is a professor of law and director of the Health Law and Policy Program at American University Washington College of Law.

Samuel R. Bagenstos is the Frank G. Millard Professor of Law at the University of Michigan and a member of the University of Michigan Institute for Healthcare Policy and Innovation.

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