For better or worse, employers have long had a vital but understated role in health care access and policy in the United States. In Employers and the Privatization of Public Health, Professor Sharona Hoffman draws on this context to catalog and illuminate American employers’ roles during a public health emergency. Recognizing the important work of private employers as part of the public health infrastructure and using the COVID-19 pandemic as a focus of the piece, Hoffman persuasively argues for treating employers as the indispensable partners they are when it comes to public health interventions and goals.
In the piece, Professor Hoffman walks the reader through the traditional role of government in public health efforts and the recently diminished reach of traditional governmental power, and provides examples of domains where employers have traditionally been involved in the goals of generally furthering health. These include the interest in workers’ health, the American employer-based health insurance system, wellness programs,, and employee assistance programs—all areas of sustained employer activity.
Notably, Professor Hoffman takes time to work through the legal constraints and incentives for employers as they relate to relevant federal and state laws. It is here that she highlights both the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, which prohibit employers from discriminating against employees. As for state laws, Professor Hoffman provides examples of laws that prohibit disability discrimination and other laws that address the permissibility of employers’ pandemic response measures in the context of COVID-19.
There are, of course, limitations in empowering employers to pursue public health measures. As Professor Hoffman acknowledges, private employers are not affected by federal constitutional provisions and may be negatively impacted by political beliefs or public pressure campaigns that could limit their effectiveness in this space. In addition to running afoul of rules that would make them state actors, there is a concern that employers may simply not implement measures that are geared toward protecting public health. Instead, with their primary interest being economic, they might fail to appropriately balance public health interventions with their own bottom line.
In the final section of the piece, Professor Hoffman leaves the reader with clear recommendations and a call to embrace employers as public health partners by pointing to employers’ extensive experience and expertise in this space (drawing on examples of employers promoting wellness initiatives or conducting drug testing). Further, Hoffman argues that employers have a real interest in making sure their workers are healthy. This allows them to compete for top-notch talent, avoid the negative impacts of a sick workforce, and address health disparities that exist. In this way, Professor Hoffman encourages the federal government to both offer guidance and provide financial support and incentives for employers to operate in this space.
Professor Hoffman’s piece is a pragmatic reminder about the importance of broadening policy interventions to expand beyond the monolithic action of a sprawling and multifaceted government. Her piece also skillfully avoids the combative rhetoric that has characterized the fight over public health interventions. By placing the focus on the “who,” such a disparate and unique actor as an employer, Hoffman avoids the tired arguments of the “what”—that is, the bitter fights over what kind of public health interventions are allowed, allowable, and defensible. Also, by tying the public health intervention to the bottom line of the employer, Hoffman can recast controversial state-based mandates into employer self-interest, which she can skillfully deploy to achieve a wide swathe of societal agreement.
Perhaps her most interesting suggestion is her push for the federal government to use its taxing and spending powers to encourage and incentivize employers to undertake the hard, in-the-trenches work of safeguarding their employees during a future public health emergency. This, of course, might avoid the societal backlash that often follows state-mandated interventions. These suggestions may not be perfect—Professor Hoffman acknowledges that employer-based actions will lack universality and fail to reach every American—but she convincingly argues that “employers can fill many of the voids left by recent pandemic legislation and jurisprudence.”
Professor Hoffman’s work is always enlightening, and this piece posits a direct thesis and makes a broad, persuasive point. And, coming out of the COVID-19 pandemic, while the hope is that her suggestions will not need to be implemented anytime soon, they are welcome additions to the literature in this space.
