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Faye Flam: Pandemic mask rules are making even less sense

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Faye Flam

Gov. J.B. Pritzker has announced new safety protocols that also include a renewed statewide mandate for masks to be worn indoors.

San Francisco Mayor London Breed sent an important but unintentional message recently when she was caught violating her own mask mandates while partying away, maskless, in a jam-packed jazz club.

Her excuse was incoherent; she said she was “feeling the spirit,” enjoying the music and so not thinking about a mask.

But the more serious problem wasn’t her hypocrisy and lame rationalizing so much as the mixed and misleading messages sent by the rules themselves. Americans are in dire need of guidance that’s coherent, fair, sustainable and backed by evidence. And they’re not getting it from public health authorities or the rule-makers who rely on them, even as the country slouches toward a confusing new normal with no end to COVID-19 in sight.

“We don’t need the fun police to come in and micromanage and tell us what we should or shouldn’t be doing,” Breed said when questioned. She was making a good point. But as Charles C.W. Cook wrote in National Review, she is the person who authorized the mask mandate. She is the fun police.

What we do know from scientific observations is that some environments are more risky than others. Epidemiologists had at one point used the term the Three Cs to describe the major risk factors: crowds, close contact and closed spaces. The San Francisco club where Breed was caught might as well have been flashing all three Cs in neon signs.

Early in the pandemic, infectious disease doctor Muge Cevik had collected studies in which researchers employed contact tracing to figure out how and where the virus was actually jumping from person to person. What the studies kept showing was that the virus was transmitted indoors, and the longer people spent indoors together, the more likely transmission would occur.

COVID prevention has to be balanced with human needs. Nobody wants to live in a world where live music is outlawed. Imposing some mask mandates might seem like a reasonable compromise.

But let’s not stumble into a future in which mask rules seem arbitrary, stupid or unfair. 

The first step toward reshaping policy would be to agree on a goal. A pair of researchers from Harvard and Boston Universities recently wrote in the New York Times about the need to agree on a purpose for COVID-19 rules and restrictions.

As risk-communication expert Peter Sandman wisely said early in the pandemic, science can tell us which activities are riskiest but it can’t tell us how much risk to accept. That is, by its nature, a political decision.

Science can help shape coherent policies that would achieve a goal once people decide what they want.

It may turn out that an additional vaccine shot will be enough to stem the tide of delta cases, but scientists are still split on who should get them and whether the purpose is to keep people from being hospitalized, or to cut down on all cases. And the tangle of booster recommendations coming from Washington is hopelessly confusing.

For a healthier new normal, we also need more information to help people navigate a world with less draconian rules.

Most common types of COVID-19 legal complaints

As COVID-19 continues to spread, so too do legal complaints—from challenges to gathering in groups, to event cancellations, to businesses suing their insurers for coverage of lost income.

The coronavirus has exposed many of the flaws and weaknesses in the local and federal governments, in supply chains, and in business relationships, which have been punctuated by an emergence of lawsuits specifically around the COVID-19 pandemic. Some are individuals suing on behalf of themselves or loved ones, often for those who were exposed to the coronavirus—in a nursing home, an assisted-living space, at a restaurant, or at work. Just as many are class action lawsuits: groups of individuals, companies or businesses suing a city or a state, or a state or federal branch, or suing a particular company or corporation.

Based on data from the Hunton Andrews Kurth COVID-19 Complaint Tracker, there have been more than 11,000 complaints filed across the country since January 2020. Zapproved used data from the complaint tracker to compile a list of the most common types of COVID-19 legal complaints. The complaint tracker is a database of both state and federal litigation involving COVID-19 claims and is updated daily. The different types of complaints are ranked by the number of legal complaints filed under each type since March 2020, and focuses primarily on corporate legal litigation. California leads the country with more than 2,000 complaints, followed by New York, Florida, Texas, and New Jersey.The month-over-month and state-by-state data is as of Aug. 10, 2021.

Lawyers, judges, and legal experts have been scrambling to keep up with how to handle issues for which there aren’t always clear laws or regulations. Many of the cases are still being litigated, and given the renewed fervor over mask mandates and the debate over whether people should be required to show proof of vaccination, the number of complaints aren’t likely to slow down any time soon.

Read on for the most common types of COVID-19 legal complaints.

Faye Flam is a Bloomberg Opinion columnist.


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