The original cover of Thomas Hobbes's work Leviathan (1651), in which he discusses the concept of the social contract theory
America can’t stay closed indefinitely. But reopening America’s shops, schools and other public places is fraught with uncertainties and risks. In some jobs and settings the precautions may not be possible.
These risks and social controls conflict sharply with an American legal system that is built upon principles of uniform treatment, avoidance of risk, privacy, and, especially, free choice. Who makes these decisions? Is anyone liable when, inevitably, some people get infected?
Reopening society requires a new pandemic social contract, with new benefits and liability framework. Instead of avoiding risk, the guiding principle, as in wartime, should be to confront the risks of this common enemy and not to surrender our vibrant society in the vane hope that the virus will go away
Many institutions, retail establishments and employers will be reluctant to reopen because of fear of legal exposure. For some, the contingent liability risk may tip the balance against reopening. While it is impossible to know for certain where someone contracted the virus, it is quite easy to identify “hot spots” such as bars or meat-packing plants. Whether those businesses should reopen, and with what precautions, are decisions to be made by government, not by individual plaintiffs or their lawyers.
Trust in the new rules is essential for Americans to brave the risks and to adhere to the guidelines. A new pandemic social contract is needed that reassures Americans that they will not be left to fend for themselves if they get sick. Because the overhang of potential risk to individuals and liability to employers could significantly impact the national economy, this new social contract should be made as matter of federal law.
The best model for a reliable pandemic social contract is the workers’ compensation system, a no-fault program in which injured workers relinquish any right to sue in exchange for the employer’s agreement to fund health-care costs and wages. Because COVID-19 does not originate in unsafe workplace conditions, however, the new program should be funded predominantly by the federal government.
The new pandemic social contract could look like this:
America’s health-care patchwork is not well-suited to a pandemic. To avoid the inequities and inefficiencies of reimbursing health-care providers through thousands of different plans, the federal government should pay providers directly for all COVID treatments. The complexities of Medicare and Medicaid enrollment make them unsuitable as a conduit. A separate branch of theCenters for Medicare and Medicaid Services could be established to fund and audit COVID health-care costs, based on one guiding mandate.
Going forward, the federal government should fund COVID treatments.
Going back to work involves risks for each worker. Some will decide that it’s not worth the risk of exposure, and try to find jobs that allow them to work remotely. That will their choice. But Americans who choose to return to work should not bear the economic costs when they get ill.
Infected Americans with few symptoms should also be encouraged to quarantine so that they don’t infect co-workers. Sick employees should receive salaries as provided in state workers’ compensation schemes, except that, because the disease was not a workplace accident, the federal government should fund the vast majority of this, perhaps 90 percent. Leaving the employers with a small portion of the exposure will provide incentives to maintain safe workplace protocols, and also to oversee the validity of claims.
As part of the pandemic social contract, Congress should preempt liability except for cases of intentional misconduct—such as flouting safety guidelines. No one in America created COVID-19, and no one should be liable unless they deliberately misbehave.
Clarity in these lawsuit limitations is vital to give employers confidence that if they do not act irresponsibly, they will not be liable. No matter what the standard of liability, however, lawyers can be expected to push the envelope.
Intentional misconduct requires hard proof, but setting soft standards such as “gross negligence,” as some have proposed, can be easily circumvented by legal rhetoric. Perfect adherence to protocols is also unrealistic; sometimes the tables will end up 5 ½ feet apart instead of 6 feet. To reliably apply the liability limitations, Congress should create a special pandemic court to handle all pandemic injury claims, along the lines of the special vaccine court it created when concerns about liability basically shut down vaccine production.
Just as the federal government organizes and funds national defense, so too should it organize a comprehensive social contract for pandemics. Americans need a simple, fair framework they can rely upon to give them the confidence to go back to work
Philip K. Howard is a New York-based lawyer, author and chairman of the nonpartisan legal- and government-reform organization Common Good (and an old friend of the editor of New England Diary, Robert Whitcomb). He’s founder of the Campaign for Common Good. This essay first ran in The Hill.
