Masks Illegal? Not Generally

Did you know that in Florida it is a criminal offense to wear "a mask or hood" in a variety of settings? Don't panic, read on. It is really not a problem for most. The prohibitions include "on a public way," section 876.12, Fla. Stat. ("lane, walk, alley, street, road, highway, or other public way")(but only if you are over 16 years old), "on public property," section 876.13, Fla. Stat, and "on the property of another," section 876.14, Fla. Stat. (but again only if you are over 16 years old).

Masks became of interest to us all when the Centers for Disease Control recently recommended that Americans begin wearing face masks amid COVID-19: "CDC recommends wearing cloth face coverings in public settings where other social distancing measures are difficult to maintain." 

The first quarter of 2020 brought the COVID-19/Wuhan/SARS-CoV-2 virus to our collective consciousness. Some perceived it as a threat earlier than others. Some reactions have been more stringent than others. But for the first three months of the year, the advice was reasonably consistent as regards face masks - no need unless you are ill. Some have been critical of those who denied the need for masks in the general public. The widely-held contention among the scientists was that wearing a mask (other than a high-quality N95) would not provide significant protection from the virus. There are still those who maintain this contention. 

Be that as it may, we are now encouraged, one and all, to wear fabric face masks when we leave the home. People are making them in their spare time. Admittedly, I have made a few myself (mine cover the nose and mouth, but are not easy on the eyes). I had a medical-professional acquaintance this week greet me with "Where is your mask?" Then, followed up by volunteering "I feel naked without mine now." People are indeed getting used to masks, though I persistently forget mine. A recent news story suggests that wearing masks in your personal automobile is not necessary and could be dangerous. 

Thus, we find ourselves amid a "century" threat. None of us will likely live to see such a threat twice in our lives (hopefully). I recall when someone told me similarly after Hurricane Ivan, that it was my "century storm" and I would not see another (then Dennis hit the next summer and then Katrina, etc. You get the picture). There is some chance our "century" pandemic may not be our last experience.

Returning to masks then. In Nicol v. State, 939 So. 2d 231 (Fla. 5th DCA 2006), the issue of mask-wearing became an issue. There, some individuals were arrested wearing bandannas (a bandanna is one of the options specifically mentioned by the CDC). One of the defendants was convicted of conspiracy, and an appeal followed. The presence of bandannas was an issue as it had been mentioned in the probable cause for the arrest, and thus became a topic in the appeal. 

The court noted that "Men wearing masks at 5 a.m. in the morning, acting furtively and watching a 7–7-Eleven store would appear to furnish probable cause." The Court noted that wearing a mask is a misdemeanor in Florida, citing sections 876.12, 876.13, and 876.14. It noted that all of these mask and hood prohibitions date to the 1950s and "were apparently aimed at the Ku Klux Klan." 

Notably, however, the Nicol Court reminded that "the Florida Supreme Court found one of these statutes unconstitutional (public property - section 876.13). Robinson v. State, 393 So. 2d 1076 (Fla.1980). That rationale was based on the statute being overbroad. The Supreme Court held "It is susceptible of being applied to create prohibitions that completely lack any rational basis."

The Supreme Court's analysis of section 876.13 in Robinson is consistent with classic overbreadth analysis under our Constitution. Overbreadth is a problem in our system of due process when some generalized prohibition impairs both appropriate and inappropriate behavior, without providing distinction, explanation, or exception. It has been said of overbreadth that "it paints with too broad a brush." Its simplicity is an arbitrariness that we find offensive to due process. There is an expectation that laws will prohibit detriment with minimal imposition on broad individual rights. 

According to the Court in Nicol, the Supreme Court decision in Robinson led the Florida Legislature to pass section 876.155, Florida Statutes. The Court noted this section "limits the application of these statutes." The District Court also concluded in Nicol that the 1981 efforts in section 876.155 are directed at "cure(ing) these problems" with "limits (to) the application of these statutes."

Section 876.155 explains that these mask prohibitions only apply in instances where bad intent accompanies the wearing. An "intent to deprive any person or class of persons of the equal protection of the laws," or an "intent, by force or threat of force, to injure, intimidate, or interfere with any person," or "intent to intimidate, threaten, abuse, or harass any other person." 

Thus, when you venture out onto Florida's "lane(s), walk(s), alley(s), street(s), road(s), highway(s), or other public way(s)," you are likely fine to wear your face mask and protect yourself to the extent possible from this viral threat. However, there remains the potential that in some settings ("5 a.m., acting furtively and watching a 7-Eleven store"; driving in your personal automobile) it may be best to forego the mask. Or, perhaps just forego the surveillance of the convenience store and go back home and get some rest?

Value, Price, and Decisions

There is an economic rule called the Utility Maximization Model. It is founded on some assumptions about our economic interactions, including that we all have less resources than we might need (there are some notable exceptions such as Bill Gates, Jeff Bezos, Warren Buffet and more, but all of us in a general sense). Because our resources are limited, products and services will compete for the attention of our dollars. Of course, we have all learned in a COVID-19/Wuhan/SARS-CoV-2 environment that sometimes the market can also ignore us a bit in certain instances.

I was reminded of that when an advertisement struck me one morning recently during my walk. I listen to a music application on my phone as I walk, and have learned to mostly tune out the advertisements. But, an ad for a very well-known bath tissue company caught my attention. It was bragging about its perceived competitive advantages over other tissues and the resulting professed value this brand offered the consumer. I laughed out loud at the ad because, at that time, the store shelves were persistently bare of any brand, type, or description of bath tissue. I am sure that they had purchased that ad spot many months before, but the irony was palpable.

The ad illustrates how marketers strive to appeal to our drive for utility maximization. They describe to us how their service or product will be of value to us, and/or will appeal to our values. We all want our needs met by a purchase. Additionally, though, we may be willing to have a somewhat less comfortable bath tissue if we believe some brand is more socially responsible, environmentally friendly, or otherwise consistent with our personal belief systems. That we perceive emotional, as well as utilitarian, appeals to products is nothing new. 

One very small study (420 surveyed) led Clutch.com to conclude that customers and potential customers find companies' social issue stance important. Significant majorities in that survey supported that those "corporate social responsibility" or "CSR" positions affected their decisions. Some contend that such CSR is gaining influence over purchasing decisions; others contend that these perceptions matter "more than price." Thus, there is a resurgence of the idea that emotional engagement with a merchant may lead to commercial interaction. 

There is also evidence to support that CSR must be sincere in order to be effective with consumers. Sciencedirect.com contends that "CSR activities improve a company's image when consumers attribute sincere motives." Thus, if consumers conclude that CSR is not genuinely about values or company culture, but about attracting sales, then the results are not as positive. The purchaser's accepted price point can be higher if there is the belief that the CSR is genuine as opposed to window dressing. 

Over the decades, we have periodically been encouraged to "Buy American." The Business Insider says that "historically these initiatives have worked." That author believes our initial instance of this was in colonial times when our forebears eschewed British goods in favor of domestically produced alternatives. When we evolved into a conflict with the British, the argument is that Americans "realized pretty quickly the dependence we had on" both the British and their goods. Thus, purportedly, began the "buy American" tradition. 

Thus, there was and remains a drive for domestic production and competition. Some do not perceive buying American as positive. One writer in the Washington Post asserts that "Buy American" is historically racist. She claims that this is true "especially against Asians and Asian Americans." There is the potential for CSR not attributable only to a company of origin, but even a country of origin. Should we buy products from a country whose social responsibility does not align with our own? It is possible that some consumers may ask whether some "made in" country is aligned with their values when making a utility maximization decision purchase. Is doing so "racist" or merely an extension of the value-driven analysis of CSR? 

In recent weeks, we have heard reports of interruption in the flow to America of manufactured goods. According to CNN, supplies of face masks slowed in March 2020. American distributors noted that Chinese manufacturers had not "shipped any new stock in two months." They were, perhaps, favoring delivery to their domestic customers? This might be about the Chinese pandemic writ large. It might also be a comparative advantage issue regarding price (if you can sell your inventory for a similar price outside your factory door, without shipping expense, is it rational to ship products thousands of miles for the same or even similar pricing?). Companies often tend to be about return on investment, numbers-driven, and less focused on the big pictures. 

The draw of foreign manufacturing may be various perceptions. Some see the trend to "offshore" jobs as belonging to the 1980s. The Harvard Business Review provided an overview of instances in which American companies made "direct investment(s)" in foreign markets that decade, seeking lower wage rates and thus lower product costs. That analysis recites as justification the desire to compete here with products produced by foreign companies on foreign soil, the "imports." It notes that some perceived then that the offshoring of jobs for the production of components or a complete process was "the only way to compete with inexpensive, high-quality imports." 

According to Voice of America (VOA), China was producing about half of the world's mask volume prior to the COVID-19/Wuhan/SARS-CoV-2 virus spreading around the globe. There have been allegations that while China and the World Health Organization (WHO) minimized COVID's effect and threat early in the virus' development, that China also bought existing mask inventories that were shipped back to China from places like the United States. The Daily Mail contends that billions of masks were obtained by China in the early days of this virus. 

In September 2019, before the news of COVID-19/Wuhan/SARS-CoV-2 reached U.S. shores, NBC News reported that the offshoring of some manufacturing was seen as a "worrying" by "American national security officials." The article claims that "the vast majority of key ingredients for drugs that many Americans rely on are manufactured abroad, mostly in China." The implication was that American's access to necessary and safe medication could be subject to tampering and medication could even be "weaponize(d)." Current claims regarding what percentage of American medication is dependent upon China or other foreign manufacturers have been the subject of some debate, as argued by Reason.com. 

When manufacturing is local, access to goods is enhanced. When manufacturing is local, it is likely that the cost of labor involved in production is also enhanced. That may change with the advent of robotics and artificial intelligence. Those implications are discussed in Tech is Changing Work. It is possible that the technology influence alone will encourage on-shoring of production. The implications of that on foreign labor markets may be immense. And, there is the potential that there will be less than a one-to-one ratio between offshore jobs lost and onshore jobs gained, secondary to the onshore implementation of technology encouraged by the onshore labor cost differential. 

In the coming days, Americans will return to work in large numbers and the economy will return to growth. There will undoubtedly be lingering effects of the COVID-19/Wuhan/SARS-CoV-2. There are likely to be tendencies to forego the purchase of non-necessities. Consumer confidence is likely to be bruised as individuals and families restock and re-save. But, consumers will return to the market and make purchases. A primary question will be whether they will do so with an eye toward something bigger than their individual utility maximization. Will perceptions of responsibility influence those decisions regarding nationality in the way they have been demonstrated in corporate culture? 

It is possible that the mask shortage example will have illustrated to Americans that there is value in having manufacturing facilities in America. Perhaps when they see two products on a shelf, one "made in China" and the other "Made in America," they will select the second despite a notably higher price. There may be recognition that the responsible thing to do is to support those American-based manufacturing efforts and the jobs that they support. Perhaps the larger issue of supporting manufacturing here, and the greater economic good of that support, will appeal to purchasers? 

It is possible that such focus may come from patriotism. It is perhaps more likely to come as regards perceptions of critical manufacturing such as the face masks or the pharmaceuticals. In the end, there is stability, predictability, and security in having a strong domestic manufacturing base. That comes at a price but is of value nonetheless. This is not in any way "against" China or the Chinese people. This is a recognition that domestic production has an intrinsic value that benefits our society and people. 

It is possible that in the short term, Americans will buy American in a broad context, whether by patriotism or feelings of responsibility. It will be interesting, however, to see how long such a trend might continue as the memory of mask shortages and shipping delays fades from prominence into our collective ambivalence. Will we (can we) maintain a focus on the national social responsibility and the values our purchases support (or not)? Or, will we convince ourselves that support for our national well-being is somehow racist or otherwise inappropriate? 

Interesting times lie ahead as we exit quarantine and lockdown. There will be much studied in this pandemic, both in science and beyond. How economic reality changes will be a significant curiosity over years to come.

Science, Standards, and Government

But now we’ve all heard social determinants of health. How are they implicated in the delivery of medical care? How are medical care delivery questions answered, by what standards, on what information?

A growing trend in recent years in the Worker’s Compensation market has been a retrospective self-evaluation on the manner in which decisions are made regarding the presence or treatment of comorbidities and pre-existing conditions. Those may result from prior injuries or from our personal medical status, body habitus, genetics, diet, and more. Though there remains room for discussion, there is evidence that our lifestyle, diet, and more can influence our health. And, there is evidence that those who are well tend overall to respond and recover better to injury or illness than those who are already ill.

The potential exists, armed with this statistical information, that some may strive not to hire those whose personal health portends risk of complication in the event of an injury. Certainly, one would hope that hiring decisions would not be made on such a basis, the potential exists. Could social determinants of health evolve into Social Determinants of Employability? Fear of potential for negative employer engagement of our health or health propensities led in 2009 to the Genetic Information Non-Discrimination Act. Whether it would come to pass, there is some fear of it. Might discrimination occur elsewhere based on our health? 

Among the subjects upon which the news periodically espouses, there is periodically "indisputable science." Despite the word "indisputable," this is sometimes generally accepted and other times ridiculed. The fact is that "indisputable" is an editorial label. And, science is subject to the limitations we all have in regards to understanding it. In a more general sense, science is a subject that is seemingly persistently in dispute and disagreement, and thus rarely indisputable. 

No matter how smart the individuals, or how much consensus for a conclusion, science is not always right. The chances for science to be incorrect are likely greater when the challenges are new, the data is incomplete, and the demand for answers is acute. There is also a potential for "groupthink" to influence conclusions. The answer to "groupthink," according to Neuroleaderhsip.com is science. But if the "groupthink" is about science, then . . . well that is a conundrum. 

The subject of social determinants raises its head once again in the midst of the COVID-19 international pandemic. A study conducted in America‘s COVID/Wuhan epicenter, New York, concluded that a significant volume (90%) of individuals hospitalized because of this virus suffered pre-existing conditions. Data is supporting this in both the general population and the young. Remember, early reports from "experts" mistakenly assured us that the disease is not a threat to the young. We were also assured early on that there was no threat of human-to-human transmission of this disease. Authority no less than the World Health Organization made such assurances. Suffice it to say there have been a few examples of science and experts reaching mistaken COVIDclusions. 

The statistics in hand now, through the addition of volumes of information acquired at great human cost, are suggesting that pre-and coexisting morbidities can affect the body's reaction to this viral attack. I use "supporting" because there is undoubtedly more data yet to come; this ailment, our response, and the science that will affect it will be studied for years to come. As the British Broadcasting Corporation noted, "History will judge which countries got it right." Similarly, retrospect will judge which experts did as well. There is a discussion of what is causing deaths; issues include pneumonia, respiratory failure, and more. How deaths are categorized is attracting scientific attention as well. 

Despite the involvement of these other conditions, there is a perception of a tendency in America to default to labeling deaths as COVID-related if there is a positive test, as reported by WUSA9 in Washington D.C. There are also some who believe that COVID death in the U.S. is being under-reported, according to CNN. This is despite Centers for Disease Control ("CDC") advice in March "that COVID-19 should be reported on the death certificate for all decedents where the disease caused or is assumed to have caused or contributed to death." Science is thus encouraging the use of assumption. 

Belgium has been in the news because the COVID-19 death statistics there "include not only deaths that are confirmed to be virus-related but even those suspected of being linked, whether the victim was tested or not" (emphasis added) according to National Public Radio. This is reminiscent perhaps of the debate that has raged regarding how to determine deaths from a hurricane. How direct must the causation be? 

Time, study, and reflection will bring reflective conclusions as to actual COVID-19 infection rates and death statistics. The point is that science, which depends on facts, definitions, and experimentation is scrambling at this time for all three. Despite that, the experts continue to hold forth on the nightly news and express their expert scientific conclusions. As Sherlock Holmes once famously noted "It is a capital mistake to theorize before you have all the evidence. It biases the judgment.” Some feel we are far from having all the evidence regarding COVID-19, and perhaps some other human ailments. 

The critical point with the comorbidities may be a bodily reaction. There is no evidence that this virus is somehow sentient or intelligent. It does not choose which organisms to enter, or which cells to attack. This discussion is solely about the human body's reaction to the attack. It is notable that some studies have concluded large volumes of Americans have developed COVID-19 antibodies without symptoms or complaints. In short, some bodies are able to resist this attack. I find myself wondering if I have already had COVID-19/Wuhan, while I simultaneously worry that I may get COVID-19. Switching between these worries is just something else to provide mental exercise in this trying time. 

There is a suggestion therefore that the infection rate may exceed the number of diagnosed cases by several orders of magnitude. A California study concluded that symptom–free individuals with the antibodies present may number between 50 and 85 times the number of diagnosed cases. The New York Times recently reported on an antibody test there that supports perhaps as many as 20% of New Yorkers (millions) having already had COVID/Wuhan. These projections, if borne out in future research, suggest a much higher infection rate than previously suspected. 

The known hospitalization and death rates (subject to the discussion above of accurate determination of the cause of death) are compared to the infection rate. As the overall infection rate increases, the comparative rate of hospitalization decreases. These infection rate numbers, which will be learned only through extensive testing for the presence of antibodies in the general population, are a critical consideration in various analyses regarding the pandemic, our response, and recovery. According to CBSN New York, the Governor there now says that antibody testing "is critical" in this regard to the efforts to reopen in New York. However, the World Health Organization suggests that the data is not yet sufficient to conclude that suffering this viral attack will render a victim thereafter immune from future relapse or infection. 

Recently, a group of doctors made the national news complaining about the lack of governmental "advance" guidance on their decision-making. The essence of the article is that the government is not providing criteria or decision matrices regarding the administration of treatment for COVID/Wuhan. There have been similar discussions in the Wall Street Journal, Politico, and Pew. They question why the government is not intervening to define their decisions. 

The expressed fear or anxiety is that doctors will be forced at some point to make life-or-death decisions regarding which COVID-19 patients receive care, and which are left to their own devices. Some doctors lament and criticize being put in that position by increasing volumes of patients and limited resources. They seemingly long for government intervention, guidelines, and criteria, by which they could make decisions and not face untoward outcomes. Some, in the press, discuss how such guidelines have been previously postulated and considered, but lament that the government has not enacted them. 

In comparison, the New York Post recently reported that New York adopted guidelines for emergency medical personnel. They reportedly "directed emergency service workers not to attempt to revive anyone without a pulse." This is a resource allocation decision, perhaps similar to what the doctors seek regarding COVID. Essentially, if some New Yorker lacks a pulse then save your time, effort, and supplies. After about 6 days, and very little media coverage, the "controversial guidelines" were rescinded because "they don’t reflect New York’s standards." If they do not, one might wonder how they were ever published in the first instance. Remember Rhianna in Take a Bow? ("When I know you're only sorry you got caught").

It is possible they, in fact, mirror the standards, but don't stand up to scrutiny? The failed experiment for emergency technician guidelines reflects the potential that public opinion might influence government action. They are an example of the government setting policy for care providers. In one instance, above, medicine seems to seek guidelines, but in this example, there is a lack of public support for such guidelines. Is it possible that with or without published guidelines that uncomfortable decision-making may be periodically required in some instances? 

There are generalized fears that medical providers will be increasingly forced to make resource allocation decisions. The Atlantic recently described issues of resource shortage. In the end, there may be instances in which there are not enough beds in intensive care, respirators, medications, or time/attention from care providers. Resources may be finite. Who will make those allocation decisions and how? Coincidentally, in March, the Daily News reported on a patient under Corona care, who was also battling cancer. He reportedly made the hard call himself, telling doctors to stop treating his COVID/Wuhan and “Save someone else.” Would I, could I, be so magnanimous? Should it be the patient who decides, the doctor (scientist), or the government (groupthink)? 

Left without a patient ready or willing to make such a call, without government guidelines or matrices, the physician must. Should those decision-makers be "risk averse" or "risk tolerant?" There is discussion of risk to the medical providers, risk to the patients, and risk to the capacity of the medical care process. At best, this is a difficult, emotional, and distressing process. 

The recognition is seemingly that people will suffer, and some will die. A portion of the untoward outcomes may be traceable in the decision tree back to some point in time in which a physician decides to intubate or not, administer medication or not, place the patient on her side or not, and similar. At least for now, those decisions are made based on scientific and medical training, experience, and belief. Such individual decisions may be later subject to second-guessing or Monday-morning-quarterbacking by lawyers, judges, and juries. Some decisions may be wrong, for a variety of reasons, and without even a modicum of bad intention or negligence. 

Thus, doctors who make mistakes, even in the best of faith and worst of conditions, may find themselves questioned. Their decision processes, criteria, assumptions, and conclusions may all find scrutiny. Some published, scholarly, government guidelines might affect that retrospection, or might not. In the end, the very best doctor may be questioned for the very best decisions because an outcome disappoints. There are legislative and executive decisions already concerning shielding care providers from liability in the COVID setting, but questions remain. 

In all honesty, I am no scientist. However, as notably, a great many non-scientists are already opining on the Coronavirus situation. In addition, a great many scientists are espousing conclusions and conjectures regarding the virus on a daily basis in the news media. They have been for weeks. Their opinions have at times differed from each other, periodically changed, or been substantiated, or been wrong. The results and reporting have led some to determine that a fair few of these experts and scientists perhaps lack credibility, despite significant medical and scientific training and experience. Thus, though I am no scientist, perhaps I can ask some pertinent questions? 

We as an American society are prone to value human life. We rise incredibly, and persistently, in response to human suffering, and have as long as I can remember. A recent news interview regarding China and its response to the Wuhan/COVID noted "The difference between collectivism and common good is a huge disconnect with the U.S. because we regard . . . human life [as] sacred." That commentator seemingly suggested that the rights, freedoms, and intellect in our society are geared to personal liberty in a way that collective societies perhaps do not understand. 

In a way, the medical guidelines debate hearkens back to the Obamacare debates. There was discussion then about a single-payer system in which the government covers all medical expenses and makes all decisions regarding the administration of health resources. In the face of COVID, we have heard similar calls for socialization, free medical testing, treatment, and replacement wages for all who are ill or who must quarantine. 

There was Obamacare debate regarding the efficacy and morality of government making decisions regarding who merits treatment and who is left to their own devices. A great many libertarian and free Americans then lamented the potentiality of Independent Payment Advisory Boards ("death panels") and argued against their facilitation or implementation. Those controversial Obamacare provisions were eventually removed from that bill (similarly to the withdrawal of New York's recent "do not resuscitate" order?). The imprint of that Obamacare discussion on socializing medical care will remain in some minds indefinitely, however. To some, the Boards were the defining element of that legislative proposal's spirit and intent, control. 

If we cede to the government the authority to make decisions regarding who is treated and who is not, what freedom have we lost? Is the long-term effect the same as the short? If the government would make those decisions, would pre-existing comorbidities become a part, as the scientific evidence perhaps portends, or would those be ignored? Could physicians be "guided" to not treat those with diabetes in the same manner that New York strove to guide paramedics not to treat (revive) those who lack a pulse? Would our public opinion and ire rise in response to such a guideline, or would we acquiesce? 

Some would suggest that the decision tree (process) remains the same without the government. They would say that health insurers, hospital committees, and doctors already make such difficult analyses in the rationing of various care and treatments. They might argue that the "who" of such decisions is a red herring and urge instead a frank and open discussion of the "what," that these decisions are likely inevitable. Those perspectives likely deserve discussion as well, as do the perspectives that perhaps our medical science is not yet omniscient or omnipotent. 

Like characters in a classic dystopian novel, will Americans find themselves eschewing the cookie in favor of the carrot stick? Will obesity, diabetes, high blood pressure, and more become excuses to exclude us from increasingly rationed care and treatment? If not in the day-to-day, perhaps only in the pandemic? Consciously or not, will our focus on personal health increase? Would our focus on our own health and fitness change if we knew that our ability to obtain medical care might one day depend upon our weight, body mass index, blood pressure, or other pre-morbidity? As a free society, do we want it to?

The National Town Hall

On Thursday, April 23, 2020, there will be a broadcast of a National Town Hall meeting recorded the day before. We have all, by this time, been in attendance on a video conference through the Internet. However, this particular Zoom meeting included about 80 participants. It was the largest in which I have been involved, and any meeting with that many participants is a challenge. Bob Wilson (WorkersCompensation.com) and Mark Walls (Safety National) co-moderated this expansive group. 

The foundational idea seems to be akin to the print efforts regarding state reaction to COVID-19. WorkersCompensation.com has a map-driven webpage with state-specific updates on what is different and/or implicated in these challenging times. WorkCompCentral (subscription) has a page in which various COVID-related news stories are aggregated for convenience. Everyone in workers' compensation has come to the realization that keeping up with the landscape these days can be a full-time endeavor. Thus, an intriguing idea to gather both industry and regulatory together for a 90-minute discussion of what is challenging and the various reactions. 

The conversation included at least Alabama, Arkansas, Arizona, Colorado, the District of Columbia, Florida, Kentucky, Maryland, Massachusetts, Mississippi, Montana, Nebraska, New Jersey, New Mexico,  Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, and Wisconsin. The variety of perspectives was not surprising. The economic impacts, personal and systemic, permeated the topic. 

There are some jurisdictions moving to require workers' compensation insurers to refund premiums based on the fact that employers' activities are currently reduced. Other states are encouraging both investigation and consideration of premium reduction. This is not an issue only for workers' compensation. The national news has reported that auto insurers have been voluntarily reducing premiums and refunding payments. The explanation from The Motley Fool helps us understand that auto premium is calculated on risk (miles driven or hours worked) and as those decrease the risk of resulting harm similarly decreases.

There was concern expressed about the perceived potential for states to have expectations for COVID compensability. There are states that have made such disease claims compensable for some by legislative intervention, and others by executive fiat. Some perceive these efforts to be contrary to (supplemental to) the law as it existed before COVID. There were concerns expressed regarding the risks for which the insurance industry contracted, or did not, and the premiums it collected, or did not. Some express worry that those carriers are now unexpectedly subjected in some jurisdictions to risks for which no premium was collected. That, others mention, may be exacerbated by state mandates for the return of workers' compensation premiums to employers. There may be distinctions between free-market and monopolistic states in this regard. 

Operationally, COVID has affected the operations of various state regulatory agencies. There are states that have closed their workers' compensation offices to the public in a prophylactic manner. Others have closed facilities in a more reactionary fashion following some specific exposure or risk. One state closed because of a particular potential exposure, engaged in "deep cleaning" and then reopened after days. Other states, like Florida, have operated the workers' compensation adjudication system in a largely consistent manner throughout; we are blessed with a long history of electronic filing, remote hearings, and technology reliance. The actions and reactions have had widely diverse impacts and implications.

What is clear from the growing body of investigation into COVID? Perhaps not a great deal. Every news outlet has its own expert, and each has opinions. Those change seemingly daily. The most reliable answer seems to be that no one, scientist or soothsayer, really knows how bad this virus will affect us, what will stop or cure it, or when it will end. 

It is probable that many people have been exposed to this virus; whether and how they have brought that to the workplace may affect a business' operations going forward. Should contracting a virus one can be exposed to anywhere be a workers' compensation exposure? There are those who fear systemic integration of virus (this one specifically, or virus generally) into workers' compensation risk, while others feel legislative reaction may be far less probable as days pass. The challenges with COVID include not only the classic workers' compensation (medical care and indemnity following an injury), but discussion of employer responsibility for quarantine.  

COVID has brought a unique medical challenge to society. The virus exists in some people who exhibit no symptoms and who therefore have no reason to suspect they carry it. Those people innocently walk among society, each a potential Typhoid Mary. The result has been the recommendation for quarantine for those who may have such exposure (though any of us may have been unknowingly exposed, perhaps repeatedly). This has seen a fair number of well people self-isolating. And, the resulting question: who should support people who are therefore unable to work? For the first time, there is inquiry as to why such precautionary isolation is not workers' compensation.

Sick employees are nothing new or novel. And, the perception is that many workers do not have, or do not have sufficient, paid sick leave. There are those whose sentiment is that the government should mandate paid sick leave. They see the risk of sick employees as a greater cost than the business' expenditure for sick leave. The cost-management is a potential issue though. The employer may save money by not providing sick leave, but the customers or coworkers who are thus exposed to a sick employee may pay the actual cost.

There is a seemingly persistent modern sentiment that whatever occurs in life, someone should pay for it. For some reason, few ever conclude that this "someone" should be the individual. Should we be saving our money individually against the potential for economic downturn, illness, or even disaster? Increasingly, there are calls for socialism to step forward, for costs of misfortune or misconduct to be borne by society rather than the individual. The calls for employer compensation for quarantine are perhaps similar to this more generalized trend away from personal responsibility. 

Within that vein, there is a discussion of workers' compensation presumptions. Various states have created presumptions that anyone in a particular occupation who is diagnosed with COVID is entitled to workers' compensation. There was mention in the Town Hall of these decisions being "policy choices." Various perceptions were voiced regarding who should be entitled to such a presumption. There were several jurisdictions that mentioned police, firefighters, and medical technicians. 

Curiously, one state provides a presumption for any police officer, but not for just any medical professional. The medical professionals there are entitled to this presumption only if they prove that they actually worked with someone who had the virus. Thus, a police officer there is entitled to the presumption merely because of her/his occupation. A medical doctor is entitled to the presumption only upon proof of interaction with an infected individual. I am not aware of any scientific foundations to support that police officers are more likely to contract any particular virus than a medical doctor. A recurrent question of equal protection of the laws permeates any discussion of occupation-based presumptions. 

That does not mean such a foundation does not exist. It is possible that science can demonstrate the logic of making distinctions between occupations and even legal foundations (what law). Some argument can perhaps be made that without the protection of such a presumption that police forces might be understaffed. But, such an argument might as readily be made about grocery store stock employees, pharmacists, cooks, and a multitude of other professions upon which we all rely daily. In the face of a virus that can apparently be contracted by anyone anywhere anytime, is any occupation more worthy of a presumption than another? Does life without police or firefighters present more challenges than life without food on the grocery shelves? 

If there is to be a presumption of occupational exposure, should there be one of tort exposure (what law)? If someone contracts COVID-19 should our law presume they must have contracted it from wherever they can prove they have been? Shall we all be afforded this route to recoup damages from the store, restaurant, or other facility to which we have visited? If we have COVID, we must have caught it there? Is that different from if we have COVID, we must have caught it on the job? If I visit my neighbor during this lockdown and become ill, should that be the responsibility of my neighbor or her/his homeowner's insurance? If my neighbor gives me a lift to the post office and I become ill, should that be the responsibility of her/his auto insurance? 

And, thus, the return to the Town Hall conclusion that these are policy choices. Recognizing that the role of the regulator is to effectuate legislative mandates, one regulator suggested that in the time of COVID questions of imperative and effect may come from those legislative bodies or members. The role of regulators, either proactive or reactive, was discussed in this context. Whether the COVID crisis is a time for wholesale changes in workers' compensation is worthy of contemplation and discussion. Some in the Town Hall expressed belief that existing laws on occupational disease are sufficient and effective in determining COVID compensability, and that adjustment is not necessary. 

In all, the gathering was interesting for those whose lives orbit the workers' compensation solar system. There are undoubtedly extensive personal and professional concerns about this virus. Anxiety and fear are palpable in various communities, professions, and situations. There are too many unknowns. Science struggles to react, industry struggles to react, workers' compensation struggles to react, and ordinary people struggle to react. Hopefully, science can bring us predictability, consensus, and relief soon. 

Ultimately, the most important victim of COVID is likely to be the economy. That seems a callous perception to some, who would remind us that it is the individual, the person, that is most important and about whom we should be concerned. But, individual responsibility is increasingly minimized, and socialized responses are instead seemingly favored. Those socialized solutions travel on the income stream that is commerce. Whether the flow is from taxes or insurance premiums, commerce creates the funding from which social safety nets subsist. If there is no commerce, there is no economic exchange, no taxes, no premiums, and no stream. No commerce, no livelihood. 

The COVID-19 implications are large and small. Some will touch us individually, others will touch us only tangentially. But in the end, COVID will touch every one of us. It is encouraging to see the workers' compensation world strive to both better understand and to support each other. Tune in on Thursday to hear the perspectives and questions. It is a worthy investment of your time. 

Click here to watch the replay. 

Counting Days Again

Sometimes the law becomes a challenge due to the mere presence and meaning of words. The focus of the judge, and courts, should be to give words their plain meaning. That seems easy enough, but there are times when the parties to a case disagree regarding such an interpretation. An interesting example of that occurred recently in Zenith Insurance Co. v. Barrisonte, Case No. 1D19-1141 (Fla. 1st DCA February 12, 2020). It is largely a discussion of what the word "day" means. 

In the Florida workers' compensation law, there are various time parameters that may affect the rights and responsibilities of those involved in claims and litigation. See Can "Jake" Authorize a Change in Physician. This Barrisonte example involved the liability for attorney fees under section 440.34(3)(b), and the Florida First District Court provides a helpful explanation of its interpretation of the "statute and the Rules of Procedure for Workers’ Compensation Adjudications." 

The statute provides an entitlement to attorney fees. Those might be the responsibility of an injured worker, or in certain specified instances might be the responsibility of the worker's employer. A major point in the distinction between the two comes down to timing. The Court noted that "a claimant is responsible for the payment of her or his own attorney’s fees" as a general rule. But, can "recover an attorney’s fee" if she/he is successful in "prosecuting a petition" "thirty days after an e/c receives the petition."

In this instance, the worker filed a petition for benefits (PFB) electronically "after five o’clock p.m. on August 22, 2018." Receipt was acknowledged "after six that night," and therefore "the parties agreed that the petition was filed the next day, on August 23rd." Therefore, under the rules, "the thirtieth day after that was September 22, 2018 (a Saturday)." At first glance, it is perhaps a simple matter to begin with a particular date and then count the days to a deadline such as 30 days. 

In this case, initially, the "E/C filed a response on August 29th denying the entire claim." The thirtieth day came and went, but on "Monday, September 24th, the E/C filed another response in which they rescinded their denial, agreed to provide all requested benefits, and denied fee entitlement." That Monday, "a check for indemnity benefits" claimed was also issued. In large part, a favorable outcome for the injured worker. 

When the worker sought attorney's fees from the E/C, those were denied. The E/C contended that it provided the claimed benefits within 30 days, and thus was not responsible for attorney fees regarding these benefits. 

The Court in Barrisonte noted that the procedural rules deem a document filed after 5:00 p.m. to be "filed the next day." And, a document that is "served," sent to the opposing party, is "deemed received when served." When that occurs "after 5 p.m. (it) is deemed to have been made on the next business day."

From this combination, the employer contended that it "received" the petition on August 23, 2018, and that the thirtieth day thereafter was September 22, 2018 (Saturday). Following the provision of Rule 60Q-6.109, "which provides that if any act required or allowed to be done falls on a holiday or weekend day, the performance of the act is required to be done on the next regular working day," the employer contended its acceptance of responsibility and payment on September 24, 2018, was thus within 30 days, and that it was not liable for attorney fees. 

The trial judge ruled in favor of the worker, concluding that the procedural rule cannot change the statute, effectively enlarging the actual time period beyond the stated 30 days. The Employer sought rehearing, and reiterated that the rule merely "explains what 30 days means . . . for purposes of computation of time.” The trial judge then ruled in the worker's favor again, concluding that "the response time provided in the statute at issue there was not altered by rule 60Q-6.109." The statutory meaning, she held, from "section 440.34(3)(b) meant consecutive or calendar days."

Furthermore, the trial judge "effectively rejected the parties’ agreement" as to receipt of the petition on August 23, 2018, "and instead took judicial notice of the OJCC’s docket," concluding that receipt was acknowledged "on August 22nd, making the thirtieth day September 21, 2018—a Friday." The Employer/Carrier's appeal contended that this sua sponte rejection of the parties' stipulation and acceptance of "extra-record" data violated its right to due process. The appellate court concluded that it "need not address the due process issue" thus raised regarding the stipulation.

The Court concluded that "the petition here was deemed filed on August 23, 2018 (Rule 60Q-6.108(1)(e)), and both served and received that same day (Rule 60Q-6.108(2)(e) and (3))." In so doing, the Court rejected the trial judge's judicial notice and stipulation rejection. Thus, the due process argument was mooted. The Court explained that these rules are appropriate and "comply with the legislative mandate in section 440.45 to enact rules." However, their operation is limited "to establish the date an E/C receives a petition for benefits."

It explained that with that receipt, "the thirty-day countdown that must expire before entitlement to attorney’s fees attaches," under the 2002 statute. It is the receipt, not the filing which begins the time period. The Court reminded that “[r]ules ‘cannot alter, amend or eliminate’ a substantive right." The context of the statute, using "days" without any modifier such as "business days" or similar, leads to the conclusion that “'days' as used in the statute be read to mean calendar days." The Court noted this conclusion is "compelling," and supported by prior Court decisions regarding the word "day."

Thus, the outcome is both controlled by one aspect of the procedural rules and not others. When the thirty-day period begins must be determined. Therefore, "the relevant procedural rules concerning filing and receipt of petitions for benefits are clearly applicable." That rule clarification does "not infringe on the statutory right" to attorney fees. Conversely, the application of 60Q-6.109 to extend that thirty-day period until the next Monday afterward would alter substantive rights in "expanding the time for an E/C who previously denied the claim to change its mind." The effect of the rule in this case would make the period thirty-two days. 

The analysis is thus complete. But the Court continued with further discussion. It intimated that the calculation of the thirty-day period was not complicated. It stressed that the Employer/Carrier, upon receipt, was on "notice of the deadline and the need to act accordingly." Furthermore, it reminded us, there was no requirement for a formal "filing" to avoid fee entitlement. 

Certainly, the E/C elected to file a "rescission of their earlier denial." However, the Court stressed that the E/C could have simply "sent an email directly to Claimant’s counsel agreeing to accept responsibility for the requested medical benefits, and put the indemnity check in the mail that Friday (or perhaps even that Saturday)." The Court's focus in this regard is upon the fact that such actions were not "impossible to do before thirty days expired."

The point of this further discussion by the Court perhaps is to stress the substance of making payment over the form of a formal written rescission filing. With the payment, the "earlier denial" would be actually rescinded. The filing of a document expressing either rescission or an intent to rescind, it seems, may not be necessary when the payment is simply made. 

But, some will note that payment was not made within the 30 days in this case. Those may wonder if the Court's conclusions in that regard are dicta and suggestion. They may advocate that the best course in such a situation would be to both file a rescission and make the payment within that 30-day period. Their advocacy was for the best course to avoid any disagreement or dissent?

We Will Get Through This

Back in 2014, I wrote Can We Help Each Other. In it, I quoted an anonymous letter-writer: "We don’t know who is fighting what battle." That was an entreaty about the pressures of the day-to-day in a normal world. We all have struggles, pressures, and challenges. But those have likely changed in the COVID world of 2020. One of the greatest challenges as humans is change. We tend to avoid it, and often it affects us profoundly. But, it is relentless. 

I was thinking of both stress and people during a recent phone conference. Details were recounted of various encounters that are being related to our various offices. The common denominator of all of those is that we just do not know what people are going through. 

Imagine someone is the one "lucky" to be telecommuting. Co-workers may envy that, the freedom from traffic, dress codes, etc. But in reality, telecommuting can be lonely, isolated, and stressful. Some who are telecommuting are simultaneously babysitting, parenting, cheffing, providing medical care or attendance, and more. 

Contrarily, someone is the "lucky" one that is still going to the office. But the office is not presently the cheerful place it was. There is no chit-chat, doughnut Friday, or camaraderie. The office has become very disconcertingly quiet, lonely, and isolated. Perhaps with only one or two people present; has it become eerie and somewhat creepy?

Imagine one is the "lucky" one who has no family to care for, and no responsibilities. They can go home after work and "actually relax." But, contrarily, imagine one is the "lucky one" who is not alone, isolated, and scared. Family is a great comfort in such times, but perhaps relationships can be momentary challenges as well?

Imagine one is the "lucky" one who got some government relief in the form of a stimulus check recently. They can pay bills or perhaps indulge. But, imagine someone else is the "lucky one" that earns too much to qualify, or has the continued shelter of a family structure that precludes their eligibility.

Imagine a lawyer, doctor, or other professional who is seen as "lucky" for their success. But, consider that professionals may be consumed right now with worry over whether they can make payroll next month, pay the electrical bill, rent, or various other commitments. That professional or business owner may be literally losing sleep over all of this. 

There is the potential for jealousy, misunderstanding, and animosity in this time. It is easy to see the grass elsewhere as greener. In some ways, it is our human nature to do so. It is easy to focus on where we see ourselves and to imagine that someone else has it better.

Through it all we may reach a point of frustration. We may make errors that, while purely honest human nature, we would not have made a month ago. We may reach out for instruction more often, misunderstand instructions more often, and misinterpret situations (or the tone of emails or calls) more often. This is a part of the reality to which stress contributes. We, at the end of it all, are merely human. 

Thomas Paine wrote in 1776 that "these are the times that try men's souls." That is an apt quote for this time in which we live. As professionals in the law, the insurance industry, medicine, and more, we are weeks into a situation the likes of which none of us have ever confronted. We are uncertain, doubtful, and frankly scared. If we had some end-point, perhaps it would help us to focus. A goal might bring comfort. But, no one knows when this will end, or how. 

Instead, there is uncertainty. Will the economy reopen this date or that? Will I be able to _________? How will this affect my ____________ (vacation plans, graduation, family commitments, etc., etc,). We sit and we wonder. As we do, we have to remain cognizant of the fact that we may not be handling the stress as well as we think. We have to focus daily on sustaining ourselves. I cautioned of this in Stress in the Time of COVID. It is astounding to realize that was only a month ago, it seems longer. 

Are you eating regularly and nutritiously? Are you getting outside every day for a walk, some sun, some air? Are you connecting with others for a conversation? Are you making time for sleep? Are you being honest with yourself about your COVID response? Are you finding some avenue to open up and vent your frustrations and feelings? In short, are you taking care of you? Remember the flight attendant says to put your mask on first so that you can help those around you. 

You should be taking care of you. You should be reminding yourself of a few things. First, you will not be perfect in this time (hint: you were not perfect before). Second, you will be stressed and that can both exacerbate your performance and affect your health. Third, whether you see it or acknowledge it, everyone you know is also going through something; ignore the hue of the grass and your perceptions as to whether theirs is better/worse than yours. 

Finally, remind yourself daily that we are all in this together. Before you reach for blame, succumb to anger, or engage in righteous indignation, try to remember we are all in this together. Be slow to fault and quick to forgive. Strive to find a way to facilitate others in a quest for achievement and success. Now is an empowerment opportunity. Remember that what you do, and how you do it, matters to people who depend upon you. 

We will get through this. There will be uncertainty, stress, and pain. But, we will get through this. Let's be proud on the other side that we did so together. And, if you just want to chat, email me anytime: david.langham@doah.state.fl.us. 

Your Constitution, Your Rights

The Coronavirus is driving a fair amount of public legal analysis. This is seemingly driven by the amazing variety of governmental reaction to the pandemic, national, state, and local. It has been intriguing to hear the various interest groups and experts opine on the limits of governmental power and authority in the midst of this pandemic. 

Before Statler and Waldorf get too wound up, this post is about the law and the U.S. Constitution. Workers' compensation is a statutory construct built upon the foundation of both American's fundamental rights and our grant of authority to our governments. Some may that as too tenuous a connection ("What does this have to do with comp?"), but if so click the back button, or click here for pictures of cats. 

News stories abound on the topic of individual rights. One of the first to catch my attention was the Rhode Island police and National Guard pulling over vehicles with New York license plates. This story broke in late March and described the police presence regarding "highways, bridges, and bus stops." There were even reports of these state officials going door-to-door attempting to locate New Yorkers fleeing the viral invasion. 

Perhaps to reassure New Yorkers, the police in Rhode Island also made the national news for arresting three golfers from Massachusetts. They had apparently driven to a local Rhode Island McDonalds where they switched to a car with Rhode Island plates in order to appear local when visiting a golf course. Unfortunately for them, "employees at the McDonalds McDonald’s ratted them out." ("would have got away with it too if it wasn't for these blasted kids and their dog?") 

In a similar maneuver, police in Dare County, North Carolina blocked the bridges providing access to the Outer Banks. The island community is said to have no cases of the Coronavirus and seeks to keep it that way. Only "full-time residents" may "come and go." That has caused some dissension among people who own homes there, and pay property taxes there, but are not "full-time." They have been denied access to their second homes and allege this violates their rights to travel and their privileges and immunities. Some of them have filed federal lawsuits regarding the deprivation of access to their property. 

A Mississippi mayor (Greenville, MS, the seat of Washington County) has allegedly issued an executive order "that orders all church buildings closed for in-person and drive-in church services." If you drive to a church in that town and sit in the car with your family (with the windows up), the news claims you will face a fine. Perhaps it is the size of the parking lot, the number of vehicles, or more? Concluding that the city there "appears to have singled out churches," the United States Attorney General reportedly filed a court notice to support the churches challenging the ban. Some point out that cars are similarly gathering at the local Sonic with windows open, yet not facing a similar threat of fines.

A similar "ban on all (religious) services" was issued in Kentucky according to ABCNews. This applied to those who would remain "in their cars to worship." A judge there quickly entered a "temporary restraining order" preventing Louisville, Kentucky from enforcing the ban on drive-in churches. There is perhaps some explanation for these efforts against drive-in church services, but I have yet to hear such an explanation. 

In Pennsylvania, a teenager sought relief from the "stay at home" order issued by its Governor. She recently took "a drive just to get out of the house for a while on Sunday evening." She was stopped by not one, but two, Pennsylvania State Police cars. They allegedly first accused her of the time-honored "your taillight is broken," but that turned out to be untrue. As an aside, I will never forget being pulled over on the Pennsylvania Turnpike years ago for driving 58 miles an hour in a 55 zone. That brings back memories of Sammy Hagar ("I can't drive 55"), and memories of a different time. This young lady has reportedly pled "not guilty and intends to" explain her defense to a judge. 

In New Jersey, "A group of gun rights advocates" has filed suit over the state omitting gun stores from the list of "essential retail businesses." Coincidentally, the plaintiffs noted, the government's "online background check portal" has allegedly been offline since that decision. Without the portal, the sale of a gun in that state seems improbable at best. The lawsuit alleges that the closure of this category of stores "violates the Second and 14th Amendments."

In Michigan, an executive order limiting people's activity has striven to limit shopping to "necessities." The drafting of that has led to some strained interpretations regarding what can and cannot be sold during this time. One store reportedly interpreted the Governor's order as precluding things like child car seats, concluding they were not "essential." WXYZ Detroit reported that this has been cleared up, perhaps, but the implications are intriguing. We already know the government can force you to buy what you do not want, National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). Of course, it can often tell you what you cannot buy (think Heroin, machine guns, etc.). Consider the government haphazardously regulating or impairing when you can or cannot buy simple consumer goods. 

A former state police officer was arrested and handcuffed in front of his child in Brighton recently. His crime? He was on a nearly deserted softball field, throwing a ball with his six-year-old daughter. The video shows that it took three Brighton police officers to effectuate the arrest. The whole Coronavirus threat has led some police forces to make public announcements that they will not enforce the law, but will only respond to "essential calls for service. It is difficult to imagine a father-daughter game of catch equating to such a threat. ABCNews reports that the police department later apologized for the arrest, and began an internal investigation. The intelligence quotient (IQ) of all three Brighton officers involved in this example may merit investigation. 

These are interesting examples of government imposition of restraints in the time of COVID-19. We live in an amazingly free society, though arguably not as free as it once was. There are those in our society that lament almost any government regulation. Others are unfazed by the government limits we face. Does the United States Constitution protect our "unalienable" rights even in times of pandemic or other urgency? You see, some would remind us that the Declaration of Independence (a list of grievances with the King's rule) notes: 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights." 

Unalienable means "indispensable," "natural," and "fundamental." These rights are strong, and we possess them because of our very existence. We believe that no government gave them to us, and therefore no government can take them away. We, from the exercise of our rights, empowered our governments; those governments did not grant or loan us these rights. It is the people, in our American paradigm, from which all power and authority flows. 

That does not, or at least has not, mean that government cannot impair such rights. In fact, the government has done so on numerous occasions. To do so effectively, the government faces a significant burden of proof, however. We refer to this as "strict scrutiny," a tool used by the Supreme Court of the United States to measure the appropriateness of government action. It is one of the "standards of review" (the other two primary standards are "rational basis" and "intermediate scrutiny") that the Court relies upon as a road map through difficult analyses and challenges. 

This is the standard employed when fundamental rights are threatened by government action. Under "strict scrutiny," the courts will presume that government action is unconstitutional. From that premise, the government will have the burden of making two demonstrations in order to justify its action of impairing fundamental rights. The government will have to show that there is a "compelling governmental interest" being furthered by the impairment and that "no less restrictive alternative is available." Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 357 (1978). This is a significant burden and rightly makes the government prove that it is compelled to constrain our fundamental rights. 

One need read no further than Korematsu v. United States, 323 U.S. 214 (1944)(internment of Japanese Americans) to understand that government may legally impair fundamental rights. That is not the question. There is no doubt that Americans have fundamental rights; we were born with them and owe them to no government grace or grant. That is not the question. The question in the coming days will be to what extent the rights and powers conflict and how courts will resolve those points of friction. Government seeking to protect one or many, and individuals seeking to prevent government interference. 

There will be arguments regarding potential harms and concerns. There may be arguments of legitimate government objectives, trivial individual impacts (one 19-year-old on a Sunday drive), and the specter of resulting "substantial effect" from an aggregation (feared or real) of activity. The Courts have already concluded that the threat of many acting in trivial personal ways presents a possible aggregate of activity that justifies penalizing even that singular trivial violation. See Wickard v. Fillburn, 317 U.S. 111 (1942).

If we can agree a single 19-year-old taking a Sunday drive may have no effect, some will argue, essentially, "What if everyone took a Sunday drive?" If we can agree that a family in their car listening to a radio is not a threat, what if everyone drove in to listen? One national commentator has opined that through these COVID-19 governmental restraints, we are "seeing (the) slow death of civil liberties in the name of public safety." And, he questions whether "we will get it back when this is over." Americans are periodically willing to trade their rights for promises of safety. Perhaps this will be one of those times?

What is likely in all of this is that COVID-19 will not fade immediately from our consciousness following the "reopening" that we anticipate. The disease will fade from the headlines in time. Instances like those cited above will thereafter, in part, continue the longer road that is litigation. In years to come, we may or may not hear news reports outlining how various courts have addressed these conflicts between individual rights and governmental powers. But, how they answer the questions raised by these conflicts between power and rights will be fundamental to understanding our path forward as Americans. Will we find that we can be told that buying a banana is essential, but buying a child car seat is not?