hand opening white plastic pvc window at home.

It’s Time for the Federal Government to Get Back to Protecting the Nation Against COVID-19

By Jennifer S. Bard

Over the past two years, the Supreme Court has shown unprecedented hostility to efforts by both state and federal government to stop the spread of what every day turns out to be an even more deadly pandemic.

These decisions are devastating, and likely signal a continued attack on government authority, but they are not a reason to give up.

The federal government can still use its vast resources to slow the spread and continued mutation of the virus, by telling people what it knows of the danger, and what it knows about how to mitigate it.

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HVAC tech wearing mask and gloves changing an air filter

Providing Clean Air in Indoor Spaces: Moving Beyond Accommodations Towards Barrier Removal

By Jennifer Bard

One of the most persistently frustrating aspects of the Americans with Disabilities Act (ADA), as currently applied to schools and workplaces, is its emphasis on the eligibility of qualifying individuals for accommodation, rather than on population-based removal of barriers to participation.

This individualized approach has always been an uncomfortable fit, given the reality of changes in physical function throughout the lifespan, and is a particularly unsatisfying model for the collective threat of COVID-19, a novel virus that has not only caused at least a million deaths in the United States, but is likely to trigger a variety of disabling sequelae in many (perhaps most) of those who recover.

So far, however, there is mounting evidence that individuals who seek to protect themselves from infection with COVID-19 in school or in the workplace (very much including those who work in schools) are going to have to do based on their individual susceptibility to contracting COVID-19 or to being disproportionately affected by an infection.

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A half face dust mask and HEPA filter over white background.

Being an Adult in the Face of Omicron

By Jennifer S. Bard

To those who believe that the federal government is a benign force doing the best they can to fight the COVID-19 pandemic and keep us all safe, I have two words of advice: Grow up.

Neither the U.S. Food and Drug Administration (FDA), Centers for Disease Control and Prevention (CDC), or Dr. Fauci should be anthropomorphized into a benevolent but perhaps out-of-touch parental figure. They are not.

As a matter of law, the government, in contrast to your parents, or school, or perhaps even your employer, does not have a fiduciary duty to protect your (or any individual’s) health and safety. As the Supreme Court said in Deshaney v. Winnebago Country Dept of Social Services, 489 U.S. 189 (1980) and again in Castlerock v. Gonzales, 545 U.S. 748 (2005), individuals do not have an enforceable right to government protection unless the state itself creates the danger. Their duty, if it exists, is to the public in general, which can encompass many factors beyond any one person’s health.

Just knowing that the government, duly elected or not, has no obligation to protect you or your family should be enough to look at its pandemic guidance as minimum, rather than maximum, standards. It should also encourage you to be proactive in taking precautions beyond those “recommended,” rather than seeing these minimal standards as unwarranted restrictions that can be negotiated down.

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