The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law

57 Pages Posted: 15 Oct 2020 Last revised: 16 Oct 2020

See all articles by Lindsay F. Wiley

Lindsay F. Wiley

American University - Washington, College of Law

Samuel R. Bagenstos

University of Michigan Law School

Date Written: July 20, 2020

Abstract

The personal responsibility ethos that has driven the US response to the coronavirus pandemic has been ineffective, atomizing, and unjust. Restrictions on public services and private activities have disproportionately burdened people living in low-income households, people with disabilities, people of color, and women. At the same time, the severe illnesses and deaths that have continued to occur in spite of public health responses have been disproportionately concentrated among people of color, disabled people, and low-wage workers.

This paper argues that fundamentally individualistic employment and antidiscrimination laws have undermined—rather than supported—disempowered workers’ ability to protect themselves and others. The law has failed to protect people who live and work in congregate institutions (including nursing homes, prisons, jails, detention facilities, factories, and warehouses . . . and, perhaps soon, schools) and thus has failed to protect the broader communities with which these institutions are interconnected. Together, public health and employment laws have put the onus on individuals to adopt protective behaviors without providing them with the supports, accommodations, and protections they need to do so.

We identify three key areas for reform to ensure more effective and just pandemic response—for this pandemic and the next one—built on a core commitment to social solidarity in public health law and employment and antidiscrimination law. First, public health law should prioritize supports that create the conditions required mitigate the spread of infection over punitive measures targeting individuals. Second, employment law should protect workers from infection, including through workplace safety, privacy, and antidiscrimination protections that enable them to adopt protective health behaviors. Third, for individuals for whom returning to work would be especially unsafe—whether because their employers maintain particularly dangerous conditions or because of their own, or their family members’, underlying health conditions—employment law should remove any obligation to return to work while the special dangers associated with the pandemic persist.

In addition to making concrete proposals for reform, our argument contributes to the academic literature in both public health and employment law. First, we show that a broad vision of public health law that encompasses action on the social determinants of health in “non-health” sectors such as employment and antidiscrimination law is not only tenable, but essential. The US experience with the coronavirus pandemic puts the final nail in the coffin of the “old” public health, which its cramped focus on microbial and behavioral interventions. Second, we bring to the foreground an additional justification for employment and antidiscrimination law—to promote solidarity by ensuring that the burdens and benefits of measures that serve the public as a whole are shared equitably. Social solidarity may offer a useful way of understanding the application of these bodies of law in other health-related contexts as well, such as genetic discrimination and workplace injuries. Third, we show that the attribution of fault and responsibility is a persistent obsession of employment and antidiscrimination law. These points should be of broad interest to employment and public health law scholars alike.

Keywords: coronavirus, COVID-19, pandemic, public health, public health law, quarantine, social distancing, employment law, antidiscrimination law, disability law, solidarity, social justice

Suggested Citation

Wiley, Lindsay Freeman and Bagenstos, Samuel R., The Personal Responsibility Pandemic: Centering Solidarity in Public Health and Employment Law (July 20, 2020). Arizona State Law Journal, Forthcoming, U of Michigan Public Law Research Paper No. 684, American University, WCL Research Paper No. 2020-21, Available at SSRN: https://ssrn.com/abstract=3656789 or http://dx.doi.org/10.2139/ssrn.3656789

Lindsay Freeman Wiley (Contact Author)

American University - Washington, College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

HOME PAGE: http://www.wcl.american.edu/faculty/wiley/

Samuel R. Bagenstos

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

HOME PAGE: http://web.law.umich.edu/_FacultyBioPage/facultybiopagenew.asp?ID=411

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