34 minute read
The Novel Pandemic Jurisprudence
by: quintin lindsmith
This is not our first pandemic rodeo. But it may as well be, because virtually no one was around when our nation’s first pandemic hit 102 years ago. Still, reports from then reveal surprising similarities in how the country reacted to the pandemic. Mask-wearing was mandated by law in some regions, but not others. There was even violence over maskwearing, including an incident where a board of health special officer shot a man for refusing to wear a mask. (The officer paid a $5 fine and the mayor had to pay a $50 fine.)1 And there was resistance to mask-wearing, including the formation of an “Anti-Mask League.”2
The worst of the flu hit just before the 1918 midterm elections, and some polling places did not even open because “there were not enough citizens who were well enough and willing to serve on the election board during the influenza pandemic.”3 At polling places that were open, people were advised to enter “one or two at a time,” and instructions urged “not congregating at the polls and avoiding needless exposure.”4
But one area of significant difference between the 1918 flu and the current pandemic is the involvement of the courts and the development of the law. The almost complete absence of precedential residue from the first pandemic suggests there was relatively little litigation directly related
to the pandemic. But this time around, by August this year, there have been almost 4,300 COVID-related lawsuits filed in the United States just since the end of February, with 883 filed in New York, 572 filed in California and 159 filed in
Ohio.5 Over 230 are employment related,6 and according to one trade publication, COVID-related business interruption lawsuits have topped 700 and are not slowing down.7 The breadth and variety of COVID-related litigation is astonishing.
Four class action lawsuits have been filed against China, seeking literally trillions of dollars. Fox News was sued for violating Washington State’s Consumer Protection Act after asserting in broadcasts in February and March that the novel coronavirus was a hoax.9 The NRA filed a federal lawsuit over Governor Cuomo’s executive order deeming gun stores “non-essential.”10 A non-profit physicians group filed a federal lawsuit seeking an order that meat and poultry processing plants test their products for COVID-19.11
With this enormous amount of litigation, one might hope there would be some pandemic jurisprudence to draw upon from 1918. Do not even bother looking. According to one source, a search of U.S. Supreme Court precedent from that era found only five cases in some way involving the pandemic.12 But even in those cases, the pandemic was only a tangential footnote as to why something happened. One case resulted in a finding that the murder confession of a Chinese immigrant while in police custody was inadmissible, because the defendant was extremely ill with influenza. In two other cases, veterans’ wives unsuccessfully sought influenza-related federal insurance benefits, but the actual issue on appeal involved defects in the jury trial.13 Another case involved the denial of a life insurance claim by the widow of an Army doctor, because the doctor had failed to list the after-effects of influenza as a preexisting condition in the life insurance application submitted in 1927.14 No great precedential insight there.
There may be several reasons why there was so little flu-related litigation during and after the first pandemic. Overall, the U.S. was a much less litigious society in 1918. That is partially because the jurisprudence in a number of areas was undeveloped or non-existent.
For example, while there existed a rough form of class action, Rule 23 was not introduced into the Federal Civil Rules until 1938. Before then, there
was only Rule 48, dating to 1842. It was all of two sentences and had no specific class certification requirements, no reference to the appointment of class counsel, and still allowed “absent parties” to bring their own separate lawsuits.
Similarly, business interruption policies had not been fully developed to their modern form, although the concept of “consequential costs” in policies had been around since 1797, when such a policy was first introduced in Britain.15 The insurance industry’s resistance to paying for economic losses was driven by the fact that modern accounting standards were not introduced until the early twentieth century and the financial records of businesses were generally considered unreliable.16 That is partially why the modern form of business interruption coverage did not emerge until almost twenty years after the 1918 pandemic.17
During the first pandemic, workplace safety laws were almost non-existent. Workers injured on the job had difficulty winning lawsuits in a legal environment where employers were permitted to show that the worker had assumed the risk, had been injured by the actions of a fellow employee, or had been partly at fault.18 When worker compensation laws were enacted by most states between 1911 and 1921, even that litigation went away. Still, a handful of federal laws had been enacted to establish workplace safety. But they were directed to only a few industries, such as railroads and mines, and the protections were very limited.19 The National Labor Relations Board would not be established until 1935 and the Occupational Safety and Health Act would not be enacted until 1970.
With only rudimentary class actions that may have been pointless, with no business interruption insurance to fight over and with few workplace safety laws to follow, there were simply not as many legal avenues that would support flurelated lawsuits a century ago, even though the types of injuries and damages then would likely be no different than they are now. So, as counsel today are retained to pursue or respond to COVID-related litigation, they will find virtually no helpful precedent from the first pandemic. Over the next 10 years, we will likely see this legal vacuum filled with the creation and evolution of a pandemic jurisprudence that has never existed before, just like COVID-19. It will be a jurisprudence which will hopefully aid society when the next pandemic comes around, which some health professionals say may be coming much sooner than every 100 years.
1 “When Mask-Wearing Rules in the 1918 Pandemic Met Resistance,” www.history.com, May 6, 2020. 2 Id. 3 Sacramento Bee, “Polls Not Open in This Precinct, Too Much Influenza,” November 6, 1918. 4 “Voting During a Pandemic? Here’s What Happened in 1918,” CBSN, April 7, 2020. 5 COVID-19 Complaint Tracker, Hunton, Andrews, Kurth, as of August 13, 2020. 6 “COVID-19 Lawsuits and Claims Increasing in Courts Nationwide,” Littler Mendelson, P.C., June 23, 2020. 7 “COVID BI Coverage Suits Top 700; Yep, That’s A Lot,” July 30, 2020, www.cerriermanagement.com/news/2020/07/30/209635.htm. 8 “At Least Four Class-Action Suits Filed Against China, Seeking Trillions Over Corona Virus Outbreak in U.S.,” www.newsweek.com, April 16, 2020. 9 “Fox News Faces Lawsuit for Calling COVID-19 a ‘Hoax,’” www.forbes.com, April 10, 2020. 10 “NRA Loses Lawsuit Fighting Gun-Store Closures Amid Corona Virus,” nypost. com, August 14, 2020. 11 “Lawsuit: COVID-19-Contaminated Meat Carcasses are Packaged, Carried to Consumers,” Yahoo Finance, August 12, 2020. 12 “The 1918 Flu Pandemic and High Court Jurisprudence,” www.law360.com, March 27, 2020. 13 Id. 14 Id. 15 “History of Business Interruption Insurance,” cms.Imigroup.com. 16 Id. 17 Id. 18 “History of Workplace Safety in the United States, 1880-1970,” EEH.net (Economic History Association), by Mark Aldrich, Smith College. 19 Id.
Quintin Lindsmith, Esq.
Bricker & Eckler LLP qlindsmith@bricker.com
Fall ‘20: The Impact of the Pandemic
Getting used to the “New Normal”
by: gwen bocher
I am a French native who moved to the United States in 1999. It instantly became my country. I like everything about it. When 9/11 happened, it was very weird to be French in the U.S. I suddenly felt stuck in a country that was not mine. I felt like a foreigner. I desperately wanted to go home, but I stayed. And 21 years later, another major national crisis struck: COVID-19. How to react? What is social distancing? How do I handle social isolation? When do I wear a mask? Who do I listen to? I got to experience living through a global pandemic with a foot on two continents. Here is what I learned:
Except for introverts and hermits, most people do not like being alone. Whether in Europe or in the U.S., people tried to get together. They were told to stay apart, so they found new ways to get together while staying physically apart. In Italy, people sang together on balconies. In France, they played music. In the U.S., they clapped for the healthcare workers, all together, every day at the same time. We have that innate need for community. We need to belong. And yet, interestingly, before COVID-19, when we could freely be together, we did not really want to be… Now, all of a sudden, everyone is missing grandma! We are missing jury duty! Or the first-grade concert that was planned after spring
break! Our coworkers! The paradox of social isolation…
How do I stay informed? I decided to stay informed through social media. The news is just too gloomy and scary. The French cannot go out without an official authorization, cannot travel more than 100 kilometers from home and cannot go grocery shopping where they want. On the other hand, the Americans are sharing where to find toilet paper and what is the best recipe for bread. From the pictures I see, everybody seems to be okay. From France, the message I get is: do not take Ibuprofen. Here in the U.S., Ibuprofen is great for fever control. Who should I listen to? What a headache! Let us take Acetaminophen to be safe. Occasionally, a clip of an official newscast will play and reinforce the seriousness of these times of considerable uncertainty and unknown consequences. Do I put my trust in
health officials? The government? Who do I turn to? The paradox of truth and falsity of healthcare information…
Do not get me started on masks. The panic over masks is global. It does not matter your ethnicity, gender, age and/or other personal identities, the dilemma is real. We were all encouraged to NOT wear a mask when going out and only wear one if infected. When told to wear one, we had different reactions. The French did not really debate it or discuss it, they just did it. In the U.S., it was another story. It was a whole cultural study to watch it unfold. I got so many phone calls from friends and relatives asking for an explanation regarding what they were reading in the news; it was tiring. At the same time, it was also kind of funny and made me smile (not that you can see a smile when you are wearing said apparel). The paradox of the mask…
And the hardest one, social distancing. Social distancing means keeping a safe distance between yourself and other people. That was a new concept! How are we going to greet each other? No more “bise” (giving a kiss on the cheek, a regular form of greeting in France), no more hugs, no more handshakes. How will we survive? How do I stay away from people? Then came along the stay at home orders, shelter in pace and confinement. If I must stay six feet apart from the next person, how will I reach for my drink at the bar? How will my child finally get out of the house and go back to school? On both continents, it seems to be the hardest change to handle. The paradox of social distancing…
In the end, whether you are in Europe or in the United States, the pandemic is here and it is scary. And yet, we have found surprising ways to cope. Perhaps most surprising is how quickly we adapt
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to the constantly changing circumstances. Have you caught yourself watching a movie or a sporting event and being astonished at the crowds and/or the absence of masks? We are now living in what some dread is the “new normal.” I do not know about you, but I kind of like it. I don’t have to kiss or hug people. I don’t even have to see them in person. Despite this, part of me would give anything to go back to the “old normal.” The paradox of being a human…
Gwen Bocher
Kohrman Jackson Krantz gfb@KJK.com
Fall ‘20: The Impact of the Pandemic
When are my employees unable to work under the FFCRA?
by: alexa cellier
Many employers are aware of the unique childcare leave provisions of the Families First Coronavirus Response Act. But it is difficult to navigate the “ins and outs” of these provisions now that many childcare centers, as well as other businesses, have reopened. One way to explore the leave provisions is to run through some real-world examples you might encounter.
Background
With respect to covered employers, the FFCRA provides up to two weeks of emergency sick leave for an employee who, among other reasons, is: “unable to work () due to a need for leave because . . . The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child care provider of such son or daughter is unavailable, due to COVID–19 precautions.”1
In addition, the FFCRA provides an additional 10 weeks of expanded family and medical leave for an employee who is:
“unable to work () due to a need for leave to care for the son or daughter . . . if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”2
The regulations highlight the requirement that the “Child
Care Provider of such Son or Daughter is unavailable, for reasons related to COVID-19.”3
Both types of leave are paid at two-thirds the employee’s regular rate of pay.
A “child care provider” is a provider “who receives compensation for providing child care services on a regular basis” and who is licensed, but “the eligible child care provider need not be compensated or licensed if he or she is a family member or friend, such as a neighbor, who regularly cares for the Employee’s child.”4 The temporary rule narrows the statute with respect to both types of leave by stating that the “Child Care Provider is unavailable, for reasons related to COVID-19 only if no other suitable person is available to care for the Son or Daughter during the period of such leave.”5 There are some eligibility requirements and exceptions that are not covered in detail here, so please check with your counsel before making any FFCRA leave-related decisions.
Scenario 1
Suppose you have an employee whose mother provides free childcare for his son. Grandma is scheduled to get surgery, but your employee is not comfortable with his son possibly exposing Grandma to COVID-19 prior to that surgery. The employee’s wife is a nurse with potential exposure to COVID-19. Your employee believes he will need roughly three weeks off work to watch his son while Grandma prepares for and recovers from surgery.
Is Grandma a childcare provider? Is she unavailable due to COVID-19 related reasons? Most importantly, do you need to provide any leave under the FFCRA?
First, Grandma is probably a childcare provider so long as she provides care on a regular basis to the employee’s son.6 Second, she is likely unavailable due to COVID-19 related reasons. That phrase is undefined in the statute and regulations, but the preamble to the temporary rule focuses on the broad remedial purpose of the statute and the goal to help “parents avoid extra childcare costs that they otherwise may have to incur.” Third, while the employee must certify there is no other suitable person available to care for his son, DOL FFCRA FAQ # 69 limits that person to a co-parent, co-guardian, or the “usual” childcare provider—in this case, Grandma. Unless one of the statute’s exemptions applies or the employee has exhausted his leave, you will likely need to provide paid leave under the FFCRA.
But don’t be dismayed! The DOL allows for some flex-
ibility. If the employee can telework, you may want to explore the possibility of using FFCRA leave intermittently when the employee does not need to actively care for his son.7 “The Department encourages employers and employees to collaborate to achieve flexibility and meet mutual needs, and the Department is supportive of such voluntary arrangements that combine telework and intermittent leave.”8
Scenario 2
Suppose you have an employee who holds only one of two positions in your company requiring special skills, but most of her work is manual labor. That employee’s daughter’s daycare is closing for two weeks due to a positive COVID-19 test in one of the children. The employee’s husband is an essential worker and cannot watch the daughter. Your company has only 40 employees, and it will be difficult to make up the work the employee won’t be able to do for those two weeks.
Do any exemptions under the FFCRA apply?
There is an exception for employers with fewer than 50 employees if granting the leave would jeopardize the viability of the business as a going concern. There are three ways granting such leave might jeopardize the viability of the business: (1) such leave would cause the small employer’s expenses and financial obligations to exceed available business revenue and cause the small employer to cease operating at a minimal capacity; (2) the absence of the employee or employees requesting such leave would pose a substantial risk to the financial health or operational capacity of the small employer because of their specialized skills, knowledge of the business or responsibilities; or (3) the small employer cannot find enough other workers who are able, willing and qualified, and who will be available at the time and place needed, to perform the labor or services the employee or employees requesting leave provide, and these labor or services are needed for the small employer to operate at a minimal capacity.
The preamble of the rule indicates the DOL will interpret this exemption narrowly. For instance, the DOL considered a “less restrictive” regulatory alternative for all small employers, but it decided “requiring small businesses to demonstrate that the viability of their business will be jeopardized if they have to provide paid leave” was more appropriate. Other references in the preamble suggest the DOL is really looking for whether the business is
likely to go under.
The small employer exemption probably does not apply in this scenario. Loss of the employee’s services for a couple weeks will not cause the company to shut down. Given the broad remedial purpose of the FFCRA, there is significant risk in denying the employee leave based on the unavailability of her childcare provider for a limited period.
In summary, when applying the leave provisions of the FFCRA, you should focus on its broad remedial purpose and look for opportunities to be flexible and make voluntary arrangements with your employees requesting leave.
1 29 U.S.C. § 2601(a)(5) 2 29 U.S.C. § 2620(a)(2)(A) 3 29 C.F.R. § 826.20(b) 4 29 C.F.R. § 826.10(a) 5 29 C.F.R. § 826.20(a)(8), (9)(b) 6 See DOL FFCRA FAQ # 68 7 See 29 C.F.R. § 826.50(c); DOL FFCRA FAQ # 19 8 DOL FFCRA FAQ # 20 9 29 U.S.C. § 2620(a)(3)(B) 10 29 C.F.R. 826.40(b)(1)
Real Estate Appraisals • Expert Testimony Thomas R. Horner, MAI
201 Bradenton Avenue • Dublin, OH 43017 Phone: 614-791-0038 Email: info@ohiorealestate.org www.ohiorealestate.org
Alexa Cellier, Esq.
BakerHostetler acellier@bakerlaw.com
by: jacob dobres & mindi schaefer
So said American writer and Cleveland native Harlan Ellison. In the legal profession, we cannot afford to be ignorant. We cannot simply convey an opinion. We must provide our clients, the courts and our colleagues an informed opinion. With COVID-19 rapidly changing the world and, of course, the legal landscape, informed opinions are not always easy to muster. We must constantly review our opinions to ensure that they remain informed in light of evolving facts and scientific developments.
When COVID-19 and coronavirus became part of the lexicon, we at Poling researched the law on communicable diseases and swiftly advised our clients that COVID-19 is not a compensable condition under Ohio’s Workers’ Compensation Act.1 We advised our clients that as a matter of law, workers’ compensation claims for COVID-19 should be denied as a matter of law. How did we reach that conclusion, and roughly six months later, does our opinion remain “informed?”
We began by considering previous workers’ compensation claims involving allegations that the flu, the common cold, pneumonia and other airborne diseases had been contracted in the course of, and arising out of, one’s employment. In one case, an employee who developed pneumococcal pneumonia filed an industrial claim alleging that he had contracted an occupational disease. The Court of Appeals of Ohio, Fourth District, found that the workers’ compensation laws did not extend to “ordinary illnesses” such as colds or influenza.2 The Ingram Court explained that “colds, influenza, and pneumonia are the result of bacteria – in common parlance germs – attacking the
body. These germs appear and cause epidemics in cities, towns, and counties. It is also a matter of rather common knowledge that such germs appear to be in the very atmosphere surrounding us, at all times. Any and every person is ‘exposed’ to them without being conscious of the fact.” Ingram informed our recommendation that COVID-19 should not simply be accepted as a workplace injury or disease.
Another decision that informed our opinion came from Ohio’s Twelfth Appellate District. In Kellogg v. Mayfield, an injured worker alleged that her pulmonary infection resulted due to cold drafts and cigarette smoke in her workplace.3 The Court of Appeals upheld a trial court’s determination that no workplace injury/disease had been established, holding, “the medical evidence indicates that the [injured worker’s] condition was just as likely to result from conditions outside the workplace…” With the holdings from Ingram and Kellogg, among others, in mind, we felt confident in advising our clients that COVID-19 claims should be denied. Almost simultaneously with our recommendation, Ohio’s legislature busied itself with a number of bills that sought to codify COVID-19 as an occupational disease and provide employees who were required to work outside of their home any time after Ohio’s declaration of a state of emergency with a presumption that if they contracted COVID-19 it had occurred in the workplace.4 Within one month of the state of emergency, three bills were introduced in the Ohio House of Representatives, each of which aimed to create a presumption that certain groups of workers who contracted COVID-19 would have a presumption that the condition occurred as a result of their work activity outside the home.5 One piece of legislation, H.B. 606, which initially aimed to provide immunity to certain businesses when COVID-19 was transmitted, was amended prior to passage by the House of Representatives to create a COVID-19 presumption for
first responders, corrections officers and food service workers. The Ohio Senate, upon passing its version of H.B. 606, stripped the COVID-19 presumption. To date, the Ohio legislature has not passed any legislation creating a COVID-19 workers’ compensation presumption.
By June 23, 2020, the Ohio Bureau of Workers’ Compensation reported that it had received more than 456 claims for COVID-19, and an additional 208 claims were filed with self-insured employers.6 The BWC created a special team to review and evaluate COVID-19 claims with an aim of providing “consistency throughout the state,” in approving or denying claims, according to Stephanie McCloud, CEO of the BWC.7 Approximately 37.5 percent of the claims filed with BWC were allowed, while roughly 26 percent of claims filed with self-insured employers were approved. According to the BWC, more than 80 percent of the COVID-19 claim applications came from first responders and healthcare workers.8
Reviewing the data from BWC – 664 claim applications filed as of June 23, and 80 percent of those involving first-responders and healthcare workers, we believe that this is another piece of information that supports our original opinion that, as a rule, COVID-19 claims should be denied. We recognize the information that suggests that the great majority of COVID-19 claims involve employees in a very specific sector – first responders and healthcare workers. Our informed opinion to clients and the general public whose employees are within this labor market would be to closely scrutinize an application for COVID-19 workers’ compensation benefits.
1 R.C. 4123.01(C) defines an injury as “any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee’s employment.” R.C. 4123.01(F) defines an occupational disease as “a disease contracted in the course of employment, which by its causes and the characteristics of its manifestation or the condition of the employment results in a hazard which distinguishes the employment in character from employment generally, and the employment creates a risk of contracting the disease in greater degree and in a different manner from the public in general.” 2 Ingram v. Conrad, 2001 Ohio App. LEXIS 6017. 3 (1991) 72 Ohio App.3d 490 4 Executive Order 2020-01D declared a state of emergency as of March 9, 2020. 5 HB 571 would apply a COVID-19 presumption to peace officers, firefighters, or emergency medical workers. HB 573 would apply a COVID-19 presumption to any worker. HB 605 would apply a COVID-19 presumption to employees of a retail food establishment or food processing establishment. 6 https://www.governing.com/work/Ohio-Workers-Contract-COVID-19-File-forWorkers-Comp.html 7 Id. 8 Id.
Jacob Dobres, Esq.
Poling jdobres@poling-law.com
Mindi Schaefer, RP, OSBA, AACP
Poling mschaefer@poling-law.com
FIVE THINGS You can do to prevent isolation and loneliness
by: megan snyder
It’s no doubt that the current state of the world has many people feeling stressed and anxious. Before the COVID-19 pandemic, lawyers were already working in an anxiety-filled setting, dealing with high expectations, multiple deadlines and clients. They were solving people problems, such as divorce, child abuse, crime, etc. They went to work and conversed with coworkers, clients and colleagues with face-to-face social interaction. Now, lawyers are faced with working from home and trying to make this change a new normal.
In 2018, 61 percent of lawyers who participated ranked “above average” on a loneliness scale from the University of California at Los Angeles. Even though they were able to work in a typical, non-COVID-19 setting, most were still lonely. Now that lawyers are forced to stay home as much as they can, they are even more prone to feelings of loneliness and isolation, which can lead to depression and anxiety.
To prevent this, lawyers must understand loneliness and isolation. They should also know that it’s ok to feel like you are not ok. These feelings are valid. We are living in an unknown environment, and it is normal to have these thoughts. If these feelings start to interfere with your life—e.g., you start sleeping too much, you cannot get your work done or you are irritable with your family and coworkers—then it might be time to ask for help.
Use the following Loneliness Scale to see if you can relate to any of the thoughts. If you find that you relate with some of the thoughts, try limiting your screen time, creating structure, connecting with others, staying active and being creative.
What is loneliness?
The UCLA Loneliness Scale is a 20-item scale designed to measure one’s subjective feelings of loneliness as well as feelings of social isolation. If you associate with any of these thoughts, you might be experiencing loneliness.
UCLA Loneliness Scale:
1. I am unhappy doing so many things alone 2. I have nobody to talk to 3. I cannot tolerate being so alone 4. I lack companionship 5. I feel as if nobody really understands me 6. I find myself waiting for people to call or write 7. There is no one I can turn to 8. I am no longer close to anyone 9. My interests and ideas are not shared by those around me 10. I feel left out 11. I feel completely alone 12. I am unable to reach out and communicate with those around me 13. My social relationships are superficial 14. I feel starved for company 15. No one really knows me well 16. I feel isolated from others 17. I am unhappy being so withdrawn 18. It is difficult for me to make friends 19. I feel shut out and excluded by others 20. People are around me but not with me1
Obviously, it is not healthy to feel lonely. People who have high scores on the UCLA Loneliness Scale are more likely to have job burnout, chronic illnesses, physical inactivity, and early death.2
If you are feeling lonely, try to act on some of the following suggestions. Even though we are asked to stay at home as much as possible, there are things you can do to help combat your feelings of loneliness and isolation.
Limit your screen time
It’s no surprise that most of the news during this time is not good news. Our news and social feeds are filled with stories about crime, racism and uncertainty about the coronavirus. When you surround yourself with bad news, it is bound to have a negative effect on you. Search for positive stories in the news, instead of just scrolling through news of the day. Limit your time on social media and news sites and spend your time doing more productive things.
Create structure
As a lawyer, you are used to structure, so it is important to create the same type of environment at home. Try to set a schedule and stick to it. Wake up and go to bed at the same time each
day. This will help keep you from veering off in the wrong direction, such as wondering what you will do each day or how you will finish your work each day.
Connect with others
Connecting with others might seem impossible at this time, but it is not. With technology, you have so many ways to talk to friends and family. Call a friend or a relative. Use apps such as FaceTime and Zoom to create a virtual family get-together.
Note that connecting with others does not just mean with your family or colleagues. Try connecting with others through online groups that have the same interests as you. For example, if you are interested in or have a passion for a certain topic like football or ancient history, find an online group and share your thoughts with others.
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Stay active
Exercise can instantly boost your mood, and there are plenty of ways to exercise in quarantine. Many online sites have free workouts you can easily do at home. You can take a walk around your neighborhood or in a local park. You can even be active while working on your house, whether it’s through cleaning or mowing your lawn.
Try not to get into the habit of binge-watching TV or spending hours without moving. Remember that a body in motion stays in motion!
Be creative
There’s a reason why there is a back order on home improvement supplies. Many people are using this time to work on their homes: painting the garage, cleaning the basement, building a tree house in the backyard, re-decorating the bedroom, etc. Take this time to do something creative. It doesn’t have to be a home improvement project. You could try painting, writing poetry, learning photography, crocheting or restoring an antique car or motorcycle. Being creative gives you a sense of purpose and can lead to feelings of accomplishment and pride.
OLAP can help
If you feel like isolation and loneliness are hindering your life, please call the Ohio Lawyers Assistance Program. We can help you get back on the right track.
1 https://fetzer.org/sites/default/files/images/stories/pdf/selfmeasures/Self_ Measures_for_Loneliness_and_Interp ersonal_Problems_UCLA_LONELINESS.pdf 2 https://sparqtools.org/mobility-measure/ucla-loneliness-scale-version-3/
Megan Snyder, MSW, LISW-S
Ohio Lawyer’s Assistance Program msnyder@ohiolap.org
CONNECTIVITY In the Time of COVID-19
by: lindsay miller & gregory dunn
The COVID-19 pandemic has highlighted more than ever the need for, and in many locations persisting lack of, broadband access and digital equity.1 Over the last five months and at the necessary direction of governors across the country, employers, colleges and K-12 institutions, and medical care providers have ordered citizens to work, continue their education and manage their health from home. If you lack broadband entirely, all of this is impossible; if you have inadequate broadband, it is still likely impossible. And while many of us hunkered down with streamed content and the ability to stay socially connected through online platforms such as Zoom, those who lack adequate broadband have been physically and socially isolated.
The statistics on the digital divide (i.e., the divide between the individuals who have access to highspeed internet and devices, and the skills and resources to fully utilize them, and the individuals who do not) are daunting. The Census’ most recent American Community Survey found that one in four Columbus households did not have a cable modem, DSL or fiber Internet account in 2018. Thirteen percent of households did not have a broadband subscription of any kind, including a cellular plan, while approximately 11 percent had internet access only through a cellular data plan. According to the Federal Communications Commission 2019 Broadband Deployment Report, 21.3 million Americans lack access to broadband at the federal definition of 25 Mbps download/3 Mbps upload. However, the true count is likely much higher due to inaccuracies in the federal broadband mapping process, explained below.
The reason for these ongoing access discrep-
The reason for these ongoing access discrepancies is relatively simple: Internet Service Providers (or ISPs), especially the very large ones, experience a stronger return on investment in dense urban areas or affluent markets than in disadvantaged neighborhoods or sparsely populated regions. As a result, rural and low-income areas typically do not experience the same level of broadband build-out and service availability as their urban and suburban counterparts.
ancies is relatively simple: Internet Service Providers (or ISPs), especially the very large ones, experience a stronger return on investment in dense urban areas or affluent markets than in disadvantaged neighborhoods or sparsely populated regions. As a result, rural and low-income areas typically do not experience the same level of broadband build-out and service availability as their urban and suburban counterparts. Predictably, then, lack of connectivity is closely tied to other social inequities and vulnerable populations disproportionately lack access to computers and home internet. For example, nearly two-thirds of Columbus households without broadband in 2018 had incomes below $35,000, and 37 percent of older adults (65+) lacked at-home computer or broadband access.
Another contributing factor is the flawed federal broadband maps mentioned previously. As the saying goes, you can’t manage what you can’t measure; however, our national broadband coverage maps are notoriously inaccurate. The federal broadband maps are created from data submitted by the ISPs using the FCC Form 477. The Form 477 collects broadband coverage information at the census block level, and if a provider serves just one location within a census block they can deem the entire block served. This is unlikely to create major discrepancies in urban areas like Columbus; however, census blocks can be several square miles in rural regions. For this reason, some states, including Ohio, have invested in state-level broadband mapping in order to determine broadband service availability at a more granular level than what is available federally. However, mapping without action is a diagnostic tool like an X-Ray or MRI, not a cure.
As a second step, the federal government and many states have implemented grant programs that award funding to existing telecommunications or broadband companies in order to incentivize build-out to un- and/or underserved locations. In Ohio, House Bill 13 is currently under consideration by the General Assembly. If passed as presently drafted, it would create a $20 million residential broadband expansion program under the Ohio Department of Commerce.
Although a step in the right direction, such programs are only a partial fix to the problem. No matter how well-funded, grants, loans and subsidies alone are insufficient to provide a comprehensive solution to the glaring technology inequities facing our nation. In addition to incentivizing private providers, governments too can invest in broadband infrastructure, including fiber optics and wireless internet towers, in order to enhance local service. Such infrastructure can then be leased by one or more private companies, particularly if it’s an “open access”
network, and/or developed through a publicprivate partnership. Instead of a quarterly rate of return required for the private sector, governments can provide long-term, patient capital, as well as intentionally target infrastructure buildout to areas that are presently excluded from modern work, education, health and recreation. As a result, in coming years, we anticipate that local, state and federal governments will invest in broadband infrastructure like never before.
While we all try to adjust to our “new normal”, the digital divide is not a new problem. But, it does require new solutions. Accurate broadband mapping and government participation are likely to be key.
1 “Broadband” is not a single technology, but a term that describes a range of technologies that provide high-speed internet access. According to the National Digital Inclusion Alliance, “Digital Equity” is a condition in which all individuals and communities have the information technology capacity needed for full participation in our society, democracy and economy. Digital Equity is necessary for civic and cultural participation, employment, lifelong learning and access to essential services.
https://www.digitalinclusion.org/definitions/.
Lindsay Miller, Esq.
lindsay.miller@icemiller.com
Gregory Dunn, Esq.
gregory.dunn@icemiller.com
