Part Three: HANDLING THE STORM: Wisconsin’s Approach to COVID-19
by Jacques C. Condon
Part three, with this and other posts raising issues worth considering in addressing Wisconsin’s response to COVID-19, also known as the coronavirus pandemic.
Part Three: Handling The Storm
THAT WHICH AILS YOU
Over the last two weeks this State as well as the country as a whole has spent an inordinate amount of time in shutting down one particular aspect of life — recreation.
The justification appears to be based on the need to “social distance” ourselves from one another in an effort to stop the spread of COVID-19 (the coronavirus strain labeled by the World Health Organization as a pandemic).
While terms such as “flattening the curve” or “protect the most vulnerable” have become media buzzwords to explain why the means justify the ends, activities that would typically fall under recreation or “gatherings” have been largely singled-out as counter-productive, non-essential, and, in many circles, dangerous.
The result, of course, has been a gutting of recreational activity as we know it, and, in many respects, the gutting of entire industries from hospitality to your local retailer.
Indeed, while differences of opinion may exist on action-specific tasks and their necessity, I can confidently state that amongst most media reports and in my professional and personal circles, the blunt-force approach of most everyone, thus far, has been largely accepting it as appropriate (without really asking whether it is right, or wrong, or even whether it will be successful).
At the same time, there is incredible inconsistency in the rhetoric — apparently we as a society can “save lives” by going to a crowded grocery store but not be in the same room with the local jeweler — and tremendous debate, conspicuously absent, as to whether the large-scale shuttering of portions of society is worth the anxiety, emotional loss, and unknown impact on the citizenry, personally and professionally.
Case in point, the Centers for Disease Control and Prevention (CDC) has articulated “guidelines” in handling contagious disease. The “guidelines” are on the web, for anyone to follow. Here is the link:
The guidelines may be more interesting to me, as a lawyer trained in reading statutes, contracts, and the written word, but they are also interesting from more empirical view: they’re guidelines.
For instance, these guidelines — in place around the onset of COVID-19, have categorized the infection rate in three ways, ranging from none to minimal, to minimal to moderate, to substantial.
The categories are important because, technically, if following the actual guidelines, large-scale shutdown of schools, business, etc. are appropriate only in instances where there exists “substantial community transmission”, and even then, the guidelines themselves use words such as “as needed” for a community.
So what does the CDC mean by “substantial community transmission”? That term is not defined, which perhaps explains why the description is a mere “guideline” as opposed to a mandatory directive.
Yet if we want to get technical — and treat the guidelines as gospel — then we would look for the intent of the word “substantial”, and to do this, where the plain language is ambiguous, the typical interpretation (legally) would then look to surrounding clues from context, or even the dictionary.
Hint, if you have some time, read my Wisconsin Lawyer article from a number of years ago on recreational immunity that ties into legislative interpretation. Here’s a link to “Go Team! Wisconsin’s Latest Recreational Immunity Controversy”:
Before you start looking up a dictionary definition of “substantial”, there is another source from the CDC, through its pamphlet on the “implementation of Mitigation Strategies for Communities with Local COVID-19 Transmission”, found here:
So the key in considering the title alone are its use of words. Mitigation Strategies. Communities. Local. Transmission.
I’ll cherry-pick some of the guiding principles from that pamphlet:
- each community is unique
- appropriate mitigation strategies vary on the level of community transmission
- consider all aspects of a community that might be impacted
- mitigation strategies can be scaled up or down depending on the evolving local situation
The pamphlet includes tables. Personal hygiene and monitoring apply across the board, regardless of category. But assume that your community — a term that we’ll look at in a future post — has “substantial” community transmission. For individuals, the CDC suggests they “limit community movement and adapt to disruptions in routine activities.” It doesn’t say stay home (although you probably should). Instead, it is written as a mitigation strategy.
For schools, the CDC suggests that where there is substantial community transmission (or substantial impact of COVID-19) that the schools consider implementing distance learning, and this: “Broader and/or longer-term school dismissals, either as a preventative measure or because of staff and/or student absenteeism.” or “Cancellation of school-associated congregations, particularly those with participation of high-risk individuals.”
The tables are even more interesting because, at least in terms of the schools, the factors to consider are based on preparing for the virus, if there are cases of COVID-19 in the schools, or the community is experiencing substantial spread. So the questions to ask are like this: what can I do to prepare?does my school have a case of COVID-19? what spread is in the community — on the range of none to substantial?
Once you’ve considered those questions, you then ask what to do. Are schools required to close? No. Should they close? It’s a consideration, or certain types of events cancelled, or continue to assess.
THE SNOW STORM
The point, however, is that the guidelines themselves are more contemplative in their application, and are certainly designed as “as needed” for a “community” as opposed to a one-size-fits-all approach to COVID-19.
Of course, in Wisconsin, the approach by the Governor was to predict the coming storm. Perhaps that prediction was based on computer models.
Perhaps that prediction was based on community pressure.
Perhaps that prediction was made by “experts” that estimated COVID-19 was already everyone.
What exactly was reviewed we don’t know.
But we do know that school was cancelled, and now Wisconsin businesses have been ordered to close, with exceptions.
This is the one-size-fits-all approach, discussed more in my next post.
Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.