Reston, USA - April 9, 2020: Social distancing sign at cashier check-out aisle inside Trader Joe's grocery shop store during coronavirus with woman employee in mask.

Passing the Buck: What the CDC Guidance on Masks Gets Wrong About Public Health

By Carmel Shachar

As Americans shed their masks in response to recent U.S. Centers for Disease Control and Prevention (CDC) guidance, the most vulnerable among us face an unfair choice: either to enforce public health hygiene or forgo being in public spaces entirely.

The new guidance, which states that fully vaccinated people can resume activities without wearing masks or socially distancing, is too nuanced for a country in which a significant percentage of adults continue to refuse vaccination and there are no mechanisms to enforce masking or social distancing for the unvaccinated.

Ultimately, this shift in policy unfairly burdens small businesses and individuals to be the guardians of public health, when it should be our community leaders responsible for enforcing public health norms.

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Herndon, USA - April 27, 2020: Virginia Fairfax County building exterior sign entrance to Mom's Organic Market store with request to wear face mask due to covid-19 pandemic.

Are Employers That Ditch Mask Mandates Liable for COVID-19 Infections at Work?

By Chloe Reichel

Last week, in response to U.S. Centers for Disease Control and Prevention (CDC) guidance indicating that vaccinated individuals need not wear face coverings indoors, a number of states and businesses swiftly did away with indoor mask mandates.

Widespread criticism followed, focusing on the dangerous policy vacuum that now exists. The CDC has suggested unvaccinated individuals follow an honor system and continue masking — but such an honor system is difficult, if not impossible, to enforce.

In the absence of indoor mask policies, individuals face increased risk of exposure to the virus. And some groups are particularly at risk of contracting the virus now, including immunocompromised individuals, for whom vaccines may not confer protection, and children under the age of 12, for whom a vaccine has not yet been authorized.

To better understand the new guidance and its implications for workers who are no longer protected by mask mandates, I spoke with Sharona Hoffman, an expert in health and employment law. Hoffman is the Edgar A. Hahn Professor of Law, a professor of bioethics, and Co-Director of Law-Medicine Center at Case Western Reserve University School of Law. In our interview, Hoffman explained whether an employer may be held liable if an employee contracts COVID-19 after an occupational exposure, and highlighted other key issues to anticipate regarding COVID-19 and the workplace.

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a crowd of people shuffling through a sidewalk

What Makes a Bad Public Health Decision? And How Can We Make Good Ones?

By Jennifer S. Bard

What makes a bad public health decision?

What we’ve seen across both the Trump and Biden administrations is that relying on the CDC’s medical model of decision-making isn’t working. No matter how sound the underlying science or medicine, public health guidance cannot be effective if its target audiences don’t understand it and it’s impossible to deploy.

The recent U.S. Centers for Disease Control and Prevention (CDC) guidance suggesting that people who are vaccinated do not have to wear masks is an instructive example.

Reporters over the past few days have confirmed that this decision was made inside the CDC, by its director, without any notice to, let alone consultation of, the state and local health authorities, retailers, and schools that would have to implement it.

But the job of public health demands an approach that encompasses such groups. Unlike medical doctors (and practicing attorneys) who bear fiduciary duties to individual patients, public health professionals’ obligations are not to individuals, but to populations. And fulfilling these obligations is very hard. It’s one thing to tailor an intervention or craft an explanation for the person in front of you, and quite another to do the same for a community.

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A pile of three surgical masks.

Public Health Law vs. Individual Advice: Why Discarding Indoor Mask Mandates Is a Mistake

By Jennifer S. Bard

The U.S. Centers for Disease Control and Prevention (CDC) announced today that fully vaccinated individuals no longer need to wear masks indoors or outdoors in most cases.

The agency has emphasized that this is merely guidance, and is not intended to affect public policy or to change practices of private companies. But it is naïve to imagine that health departments and private organizations will not make changes in response to the announcement.

There is a growing public wish to put COVID-19 behind us by eliminating visible signs that it still exists (e.g., mask wearing). But guidance driven by this magical thinking will cause unnecessary harm. Public health measures should protect the larger population, including those who cannot be or have not yet been vaccinated. This CDC guidance proffers individual advice at the expense of the goals of public health.

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3D rendering of COVID-19 virus.

Consider the Fundamentals of Viruses When Crafting Law and Policy Responses

By Jennifer S. Bard

Lawyers and law professors are very much part of the ongoing efforts to make policy in response to the COVID-19 pandemic. Like everyone else involved, we face the particular challenge of being confronted daily with what seems to be an ever-changing flow of information about a newly emerged and rapidly mutating virus.

But what may help us better make or evaluate policy is a better understanding of some typical characteristics of viruses that make all of them very difficult to contain, rather than just the unique features of the one threatening us now.

Knowing more about the ways that viruses spread could help us avoid the pitfalls of declaring victory too early; rolling back existing infection control measures and ending up worse off than we have been at any stage of this pandemic.

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Madison, Wisconsin / USA - April 24th, 2020: Nurses at Reopen Wisconsin Protesting against the protesters protesting safer at home order rally holding signs telling people to go home.

The Consequences of Public Health Law Vacuums

By Daniel Goldberg

Pandemic planning documents and materials from the early 2000s to the present anticipated a great deal of what the U.S. has been experiencing during the COVID-19 pandemic. The best of such plans documented exactly what be required to manage, respond, and control a pandemic spread by a highly communicable respiratory virus like SARS-CoV-2.

What the plans did not account for was what we are now experiencing: That governments would simply refuse to govern.

Few truly accounted for the possibility that the very entities charged with regulating for the health, safety, and welfare of their residents and citizens would simply decline to do so, choosing instead the public health law vacuums in which we find ourselves at the present time. Read More

Waitress wears face mask and face shield, cleans table with alcohol and wet wipe at restaurant.

The Problem with Individual-Level Interventions to Curb the COVID-19 Pandemic

By Daniel Goldberg

The failure to control the COVID-19 pandemic in the United States rests, in part, on the individualist nature of our public health responses.

Public health simply does not work well when we base our interventions on the individual level. This is known as “methodological individualism,” and the evidence suggests it is both ineffective and can expand existing health inequalities. It is problematic in any public health context, but especially in pandemic response and control.

Take, for example, the ongoing debate over mask mandates. Multiple governors have refused to issue mask mandates, instead simply requesting that people don masks. The objection, interestingly, is not to the idea of masking as a public health intervention, but to the existence of a mandate itself.

Yet a model of public health which consists of nothing more than pleading with individuals to avoid behaving in ways injurious to public health would be an abject failure. Imagine if, instead of imposing minimum requirements for clean water, we simply asked regulated industries to avoid polluting watersheds. Or perhaps instead of passing laws discouraging or even criminalizing obviously harmful behavior, we simply asked people to avoid driving drunk.

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Highway alert: Covid-19 checkpoint ahead, overhead sign in Florida on state border.

Amending the Public Health Service Act to Encourage CDC Action to Stop COVID-19

By Jennifer S. Bard

The U.S. Centers for Disease Control and Prevention (CDC) already has all the power it needs to limit the movement of people in order to slow the spread of COVID-19.

Yet, throughout this pandemic, they have taken no steps beyond issuing stark warnings, which have been only marginally effective. For example, this Thanksgiving, estimates indicate that almost 5 million flew and up to 50 million drove to join others. Dr. Deborah Birx is warning that everyone who did so should consider themselves infected.

The CDC’s historic reluctance to institute the politically unpopular measure of restricting travel could be countered by adding a self-executing amendment to 42 U.S. Code 264 requiring that the option be assessed at the beginning of an outbreak and periodically reviewed. More specifically, this amendment should create a review committee and set metrics for travel restrictions.

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Organs and Overdoses (Part II): ‘Higher risk’ donors

By Brad Segal

In my last post I characterized how overdoses from the surging opioid epidemic have become the fastest-growing cause of mortality among organ donors. In this update, I raise one potential consequence with ethical and policy implications: so-called donor-derived infections. To be clear, I focus primarily on organ recipients as deaths from drug overdose, and drug addiction more broadly, should be prevented regardless of any implications for transplantation. With this in mind, consider how the population of injection drug users shoulders a heavy burden of HIV, hepatitis B (HBV) and hepatitis C (HCV) (Table 1). First I will focus on screening guidelines, and then will move on to transplantation of organs known to carry an infection. table-1

Screening guidelines can help reduce the incidence of donor-derived infections, but the lab tests recommended in any policy must balance two potential concerns. First, lab tests have a rate of false negative results. Transplants of these organs will accidentally increase donor-derived infections. The policy question, then, is whether or not transplanting organs donated by individuals with higher risk of recent disease exposure will expose an unacceptable proportion of recipients to infection. This unintentional harm could undermine a duty of non-maleficence to organ recipients. Further complicating a potential screening policy is that the basic lab tests for HIV, HBV, and HCV detect the presence of human antibodies, which work well among a low-risk population, but antibodies might not appear in the blood until weeks after infection (Table 2).Recent infections are better detected by nucleic acid amplification (NAT) testing.To mitigate risk of infection,then, transplant screening policies should require a heightened level of surveillance among donors with a history of illicit drug use. Read More