ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Friday, May 22, 2020

Reading the Covid-Related News on Bloomberg

A few stories caught my eye this week.  

First, Paige Smith and Robert Iafolla bring us news that refusing to wear a mask at work can cost you your job.  Companies that are re-opening are following CDC guidelines by requiring that returning workers wear masks.  

The story suggests that there has been little resistance from workers; on the contrary,  workers are more likely to complain that their employers are taking too few precautions against contagion rather than too many.  There are apparently religious and medical exemptions (don't those usually require face coverings rather than prohibit them?), but workers cannot claim a free-speech right to refuse to wear a mask.  So long as the requirement that employees wear masks is generally applicable and generally enforced, with appropriate accommodations where reasonable, it is likely to survive any legal challenge.

Two quick points: first, I am always struck by the lack of outrage at private actors who do things that spark outrage when the government does them, even though the private actors are motivated by profit and the government is motivated, at least in part, by concerns like public safety or national security.  The supposed difference is that workers consent to their terms of employment, but when you combine the ubiquity of at-will employment, form employment contracts that eliminate recourse, and a 15% unemployment rate, it is hard to take seriously claims that workers give meaningful consent to terms of employment. Nancy Kim and I explored this topic in the context of data-mining in connection with consumer contracting in a pre-Covid world.

Second, I wonder if the Bloomberg article underestimates the power of the argument that refusing to wear a mask is symbolic political speech.  When I go shopping these days, only about half of the people in the store wear masks.  Their refusal to do so puts me and other shoppers at risk.  It's possible that they just don't know where to get a mask (try Etsy!), but it is hard not to view their choice not to wear mask as a statement, and perhaps they view my mask as a mark of my self-subordination to the nanny-state as well. 

What do you do if you need to have someone to do some work in your home, and they show up without a mask?  Do you tell them to leave and come back with a mask?  Do you hide in the bathroom until they finish and then disinfect all surfaces with which they might have come in contact?  Do you leave a Yelp review and give them a low rating in the public health and safety category?  Confronting them seems like borrowing trouble.  They have access to the same information that you have.  Telling adults that they've made a poor decision (or implying that they have) rarely goes over well.

Meanwhile, Jef Feeley and Joshua Fineman report on another acquisition now on hold because of the pandemic.  In Forescout Technologies Inc. v. Ferrari Group Holdings LP, 2020-0385, Delaware Chancery Court (Wilmington), Forescout, a cybersecurity company, is claiming that private equity group, Advent International, ought not to be permitted to back out of its $1.9 billion deal to acquire Forescout.  Forescout claims that Advent assumed the risks associated with any possible impact that the pandemic might have on the deal.  According to the report, this is one of at least nine deals that resulted in Covid-related litigation in May, including $10 billion in disputed mergers and acquisition deals that landed in Delaware's Chancery Court during one seven-day period in May.  "Material adverse effect" clauses need to be carefully drafted or they will be carefully scrutinized by a court or arbiter.

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Jeremy, the mask has indeed become a political symbol. Based on a publicized statement that wearing a mask signified a concern for the health of others, Rush Limbaugh has advised his listeners that wearing masks has no health effects at all, in effect telling them that wearing a mask was an act of disloyalty to President Trump and a yielding to the statist agenda of the left and the mainstream press. In other times, one might have characterized this as criminally irresponsible. As it is, it shows the volatile nature of symbolic speech. The next step will no doubt be to claim that mask wearing is offensive to religious scruples and a matter of First Amendment freedom.

Posted by: Sidney DeLOng | May 30, 2020 4:05:48 PM