Public Participation as a Privilege for the Immune? LPE on COVID-19 (vol. 5)

This post is part of our ongoing coverage of the COVID-19 Crisis from an LPE Perspective.

Sam Hull–

As the COVID-19 pandemic continues, debate has begun over when and how to restart society. Some proposals, such as those that call for seniors to sacrifice themselves for the good of “the economy,” expose the inherent inhumanity of those who valorize profits above all else.

Others have explored how to reinstate economic activity without abandoning public health considerations. German researchers have proposed the issuance of “immunity passports,” whereby workers who have already had COVID-19 and developed antibodies “could be issued with a kind of vaccination pass that would for example allow them to [be] exempted from restrictions on their activity.” Italian politicians across the political spectrum have adopted the idea, and the White House coronavirus task force is reportedly discussing it.

Even absent such policies, there is also the possibility that businesses (i.e. “the market”) could impose similar restrictions on their own employees. Worries about insurance payments, higher sick days, and potential shutdowns should an employee contract the virus might lead employers to restrict hiring to those who can prove immunity. And perhaps to fire those who cannot.

What to make of these possibilities?

Supporters argue that while “it looks like it splits humanity into two, the strong and the weak,” such a division is justified, because “it’s not discriminating . . . It’s protecting.” The proposals do offer the tantalizing possibility of getting “the economy” (and many aspects of society more generally) going again while protecting public health. If immunity does prove to be long-lasting, such a system could save lives, especially those of workers at essential businesses who are already facing the pandemic’s worst effects. But it also seems likely that creating special permissions based on immunity would deepen existing inequalities while creating new ones.

As vulnerable and precarious workers in public-facing service industry jobs are currently those most likely to contract the virus, they may acquire immunity more quickly and therefore be able to quickly re-enter the workforce under an “immunity passport” scheme. However, the jobs that such workers would be seeking are also more likely than white-collar positions to require such immunities in the first place, as white-collar jobs can more easily be made remote. The end result of this dynamic could plausibly be the creation of a subclass of non-immune workers within the precariat itself.

The United States’s weak social safety net means members of the precariat might even try to contract coronavirus in order to re-enter the workforce after their presumed, but far from guaranteed, recovery. Aside from putting these individuals at risk, doing so would make them vectors for the virus’s further spread. In a country that shows an appalling lack of care for its most vulnerable, however, following public health directives might be trumped by the need to re-enter the workforce to make a living.

Given that immunity certificates (whether issued by government or business) might take a form as simple as concert wristbands or stamped ID cards, another likely outcome would be the development of a vibrant black market.

As far as I can tell, current law would not prevent such schemes.

If Congress decided to issue passes such as those discussed in Italy, it seems unlikely that the Constitution would stand in the way. As the healthy are not a protected class, any equal protection challenge to such legislation would have to stand up to rational basis review. In such an adjudication, it seems likely that a court would find that trying to ensure that businesses could open up with a labor force composed of immune workers was a legitimate government interest.

Courts also generally circumscribe Due Process protections during public health emergencies. Were states to legislate independently, the judicial system would likely intervene. In the 1905 case Jacobson v. Massachusetts, the Supreme Court held that state public health actions must bear a “real or substantial relation” to a public health objective. No recent case law has tightened these standards, leaving states to establish their own, often minimally protective, restrictions.

Business-created restrictions would be of uncertain legality. In School Board of Nassau County v. Arline, the Supreme Court held that “[a] person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his or her job if reasonable accommodation will not eliminate that risk.” A risk assessment should examine “(a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.” These criteria are codified under the “direct threat” exceptions to the Americans with Disabilities Act’s employment discrimination prohibitions.

Due to its high rate of transmission, a firm could likely refuse to hire an applicant who was already contagious with COVID-19. The more pertinent question is whether, simply by nature of not already being immune to coronavirus, one could also face such a restriction. Such a holding could only apply in the context of a pandemic, with a virus that seems likely to infect much of the populace. The reasonable accommodation requirement might protect applicants to certain non-public facing jobs. Still, if an applicant sought an injunction against such hiring practices, the court would have to consider the likelihood of harm to the defendant, as well as to the public. It is possible that if courts found the chances of an employee without immunity contracting the virus to be high enough, they could hold that the equities balance in favor of allowing the business’s practice.

The HHS also released a memo stating that the Public Readiness and Emergency Preparedness Act “may provide immunity from certain liability under civil rights law” such as the ADA. While the ACLU quickly pointed out the inaccuracy of this statement, it could be indicative of a broader willingness to circumscribe civil rights enforcement during the pandemic–a concern raised by the National Council on Disability.

If some form of immunity passport system, whether state- or business-run, were to prove inevitable, increasing unemployment insurance or instituting a universal basic income of the kind Spain plans to adopt could ensure that workers don’t have to choose between their health and economic security. However, further actions would soon be required to alleviate the dignitary harms that result from exclusion from the economic sphere.

The post-Marxist scholar André Gorz argued that in a society where social identity is based on work and the clearly defined social obligations it entails, social rights are contingent on participation in the societal process of production. As a guaranteed income without a corresponding work obligation does not ask anything of the recipient, it cannot confer social rights upon them either. The unemployed or furloughed worker’s existence is limited to the private sphere, with even full compensation serving as “the wages of marginality and social exclusion” and leaving them being seen as a “supernumerary of the human species.”

However, the crisis has created an opening to address this issue. Given the current void left by dissipating business investment, the government will need continued fiscal intervention to avoid economic collapse. One potential intervention would be to pair an immunity passport system with a pilot version of the jobs guarantee program that economists like Pavlina Tcherneva have long called for. For however long individuals without immunity were unable to work in public-facing jobs, the government could ensure that they had access to remote work, along with the training and equipment required. More than just alleviating the dignitary and economic consequences of an exclusionary economic sphere, such an approach could demonstrate to a potential future Democratic administration the utility and feasibility of a permanent jobs guarantee –one that would ensure all could contribute to the task of rebuilding society in the pandemic’s wake.

Sam Hull is a 1L at Yale Law School.