Employers and the Privatization of Public Health

Abstract

This Article focuses on the role of employers in public health and argues that they constitute increasingly important actors in the U.S. public health arena. In the aftermath of the COVID-19 pandemic, a series of judicial decisions and newly enacted statutes enfeebled the public health powers of the federal and state governments. In a 2023 statement, Supreme Court Justice Neil Gorsuch clearly articulated his antagonism toward government-initiated COVID-19 interventions, describing them as “the greatest intrusions on civil liberties in the peacetime history of this country.” All too many share his views. Employers may be highly motivated to safeguard their workers’ health. Without healthy staff members, they cannot keep their doors open, and without visible pandemic protections, they cannot reassure concerned customers that their premises are safe. During COVID-19, many employers established mask, testing, social distancing, and vaccine rules even in the absence of government mandates. Employers’ profit motives do not diminish their contributions to public health. Their contributions can significantly reduce health disparities by protecting vulnerable individuals who otherwise face health care access barriers and economic challenges that exacerbate their risks. This Article posits that in future public health emergencies, the United States will increasingly rely on those with a financial stake in individuals’ health. Federal and state government authorities should therefore embrace employers as public health partners. To that end, this Article develops recommendations concerning guidance and funding support that should be available to assist employers in their emergency response efforts.