It is significantly clear now after another wave has come and gone without masks and vaccine passports that the absurd mandates that were foisted upon us were nothing but talismans for a new medical religion. Rosary beads and communion wine are the masks and the two, three, four-dose vaccine for the Branch Covidians, waiting in line when their time is ready to drink inject the holy sacrament – and when those Fauci footprints in the sand are nowhere to be found in times of stress you reach into your pocket, and you clench your mask knowing that you are protected by Saint Fauci.
It is all too clear, that NPIs and mandates of any kind did not work. I do not need to tell you this, my blog has many posts on masks and vaccines. For the record, I took the vaccine, and I do believe it has a benefit for elderly and immunocompromised patients in battling Covid. But a 20-year-old student who is not affected being forced to take a vaccine is absurd. But one thing that sticks with me is the schools, and some businesses still grasping these measures. Even though most jurisdictions have lifted the mandates, some continue to keep them in place out of “an abundance of caution.”
Let us focus on that phrase: “an abundance of caution”, this phrase says so much, especially after mandates have been lifted. What it says is: “We know the mandates are lifted, and we know Covid is not a threat, and we know the mandates largely don’t work, but we are still nervous to cause harm to our [insert institution] community.” If the title was not a giveaway, the only thing that can explain this is that institutions and businesses are using this as a legal liability shield.
What is a legal liability shield (LLS)? An LLS is a legal strategy for managing organizational risk in the form of waiver agreements or informed consent documents. The LLS simply removes liability related to the organization off the organization in the event of an incident with due notice of potential liability. As an educator, let’s use the example of a university. A group in a university condemns it for being a racist institution. The university is not racist in the least, but they hold a seminar to discuss the critical problem of systemic racism on campuses. Does the university believe in this? Maybe they do, but more plausibly they hold these seminars not so much for the content, but for the signature from staff and administration at the end of the seminar that acts as a binding agreement between the school and the seminar contents related to policy. Therefore, if one racist incident happens at the school, the school is not held liable for that incident as they have shielded themselves from liability through the policy measures taken via the seminar.
This has relation to the Sarbanes-Oxley Act of 2002, used to make transparent accounting measures after the Enron scandal, but the language used is to welcome this idea of limiting liability from a business for something that is out of their control either in auditing or in any other circumstance. An act used to protect shareholders from fraudulent accounting tactics is used by corporations to shift blame from themselves to the entities causing the fraudulent act. This brings us to the mandates for Covid and how industries are using the mandates – in actuality – to deflect liability from people getting sick within their doors.
When reading between the lines of “an abundance of caution” that means “an abundance of protection from liability over you getting sick.” This is perhaps the reason why a large number of businesses did not care when I would walk maskless into their store or asked if I had a mask but did not care when I said I am medically exempt, because they did not care about public health either, they had their liability training to wear the mask, stand at the front of the door, ask about mask-wearing, so at the end of the day if someone got sick with Covid at the establishment they could say “we asked them to wear the mask as per the guidelines, and we were protected, so don’t look at us.”
Private companies are largely not using this ‘abundance of caution’ form now after government mandates have been lifted, but public institutions like schools, hospitals, and airlines are still following this standard, and the LLS is the only rational explanation. I guess the most important question to ask is why are public institutions so afraid of lawsuits? Garry Hopkins writing for Education World outlines how the looming threat of a lawsuit on principles and administrators, no matter how frivolous, causes stress, time, and money to be spent protecting the institution from a lawsuit. Virgil Van Dusen from Texas Tech University outlines the many areas faculty and administrators need to be focused on to avoid legal conflict in the area of higher education. From these two works, certain themes emerge to answer why public institutions are so much more protective than private.
- Public Funds: public funds are scarce and are provided by the taxpayer. In our society, no taxpayer wants to see their funds being used in a frivolous lawsuit.
- Integrity: public institutions want to maintain integrity to the public for the work they are doing, frivolous lawsuit claims hurt the integrity.
- Politics: regardless of how politically ideological your institution is, they need money from the government to operate; therefore, political ideologies will change with the course the current government is pushing.
It seems pretty clear that mask and vaccine mandates are not about public health or protecting the public in terms of physiological/biological health – it is to protect the integrity of the institution, avoid spending money, and maintain the political standard in avoiding a lawsuit over someone getting sick. In finality, one might ask if this is even legally feasible to worry about a lawsuit from someone getting sick. In an article from 2017 – before the pandemic – Lawyer George Khoury asked can you sue if someone makes you sick? Ultimately it depends on the illness, simply put, AIDS and herpes are much different than colds and flus. STDs are in a category of their own as they are personally transmitted through a consenting act. It is through the consenting act of sex that a causal claim can be made for injury. When it comes to respiratory viruses, Khoury states:
“While you know that your co-worker who sits two cubes behind you is responsible for your strep throat and/or flu, suing him might not even be possible…Additionally, even though you may have suffered some serious economic losses due to an ER visit, loss of wages, or other financial losses, common illnesses, like the cold or flu, are nearly impossible to recover from, as it is nearly impossible to prove how you got it.”
Similar to Covid, the concept of contact tracing has been proven a monumental and impossible task to keep track of considering how transmissible Covid has been. Even the Covidians who are now sifting through wastewater looking for traces of the virus prove it is so entrenched in our human biome, it is like asking “who exhaled carbon dioxide in this school that I then inhaled, I want to know!”
What this blog post shows is that a fear of legal liability over Covid is nearly impossible to trace or prove in a court of law; thus, damages from legal pressure are nowhere to be found. Administrators and officers in these institutions need to be rational here and understand that there is no legal precedent for sickness involving a highly transmissible virus that is airborne and cannot be traced to one individual. So please out of ‘an abundance of rationality’ please end the mandates.
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