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Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: Government officials across the country are saying the key to

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Speaker 1: reopening the economy is wide scale antibody testing to identify

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Speaker 1: who has immunity to COVID nineteen. New York's Governor Andrew

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Speaker 1: Cuomo has asked the f d A for the okay

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Speaker 1: to test one thousand residents a day, saying it's a

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Speaker 1: step on the long road back. It's going to be

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Speaker 1: a gradual, phased process, and it's going to be reliant

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Speaker 1: on testing, UH, testing of antibodies, testing for diagnostic results,

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Speaker 1: and testing on a scale that we have not done before.

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Speaker 1: But Dr Robert Redfield, director of the c d C,

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Speaker 1: has pointed out the limits of antibody testing. Our working

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Speaker 1: assumption is that individuals who develop antibody will have protective immunity,

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Speaker 1: that austion is, how long, and when a state determines

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Speaker 1: who can return to work or school with a predictive test,

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Speaker 1: the legal challenges are sure to follow. Joining me is

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Speaker 1: Harold Crant, professor at the Chicago Kent College of Law.

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Speaker 1: Using these antibody tests would mean isolating someone not based

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Speaker 1: on what virus they're carrying, but based on the fact

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Speaker 1: that they're not immune to the virus, even though it's

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Speaker 1: something they may never get. You know, what's startling about

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Speaker 1: this development is that governments are considering creating two classes

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Speaker 1: of citizens, and as you mentioned, the one class of

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Speaker 1: citizens will be in a very inferior place, will be

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Speaker 1: locked to their homes, can't travel, can't possibly work just

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Speaker 1: because of the fact that they don't have the anivice,

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Speaker 1: because the fact that they may not be immune from

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Speaker 1: this awful disease. So the state would be deciding whether

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Speaker 1: someone has the right to work based on a predictive

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Speaker 1: test that's not definitive and that impinges on civil liberties.

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Speaker 1: It would definitely be challenging core, I would think so.

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Speaker 1: Already we've seen these stay at home orders challenged by

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Speaker 1: businesses who claim to be essential businesses, and the sweeping

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Speaker 1: magnitude of this two class system I'm sure would foment

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Speaker 1: much more litigation. I mean, what you'd be saying is

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Speaker 1: that one group of citizens they can work, they can

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Speaker 1: help their families, they can provide for them, maybe they'll

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Speaker 1: get even a premium for working, and the other group

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Speaker 1: has to be relegated to their homes. That impinges upon

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Speaker 1: the constitutional rights to travel to pursue a livelihood. And

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Speaker 1: at the bottom of this is a test for antibodies

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Speaker 1: that even scientists say is uncertain how well it will work.

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Speaker 1: They'll overpredict and it will underpredict. So what standard of

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Speaker 1: review would a court use in a case like this

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Speaker 1: we're gonna review is a little bit unprecedented. States have

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Speaker 1: articulated their standard review somewhat differently from contagion, but we've

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Speaker 1: never had a sort of national wide pandemic before this magnitude,

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Speaker 1: LEAs since the Spanish flu. My guests, it would be

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Speaker 1: a kind of clear and convincing evidence. That's the standard

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Speaker 1: that the Supreme Court is used for involuntary commitment, and

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Speaker 1: it seems to me that that's the most directly applicable here.

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Speaker 1: So if we take away your liberty not because of

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Speaker 1: what you've done, but because of a prediction there, we

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Speaker 1: have to meet a demanding standard, and it should be

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Speaker 1: a demanding standard, and so it will be some variant

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Speaker 1: or close to I believe a clear and convincing standard,

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Speaker 1: not the highest that we used for criminal incarceration, but

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Speaker 1: much higher than just a normal proponent of the evidence

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Speaker 1: burden of proof, Why not the highest standard here, since

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Speaker 1: you're basically putting somewhat in the prison of their own home.

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Speaker 1: We are, but I think that there's a recognition of

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Speaker 1: the fact just as we are have in the civil

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Speaker 1: commitment of people who are dangerous. That's public health and

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Speaker 1: public safety demand extraordinary measures. And in this case, everything

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Speaker 1: we know about science says that even if the tests

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Speaker 1: aren't entirely accurate, there is something to be said about

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Speaker 1: trying to get the economy back together while we prevent

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Speaker 1: a continuing outbreak of this disease. So describe the balancing test.

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Speaker 1: What is balanced against what? So the state's interests here

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Speaker 1: would be to protect against a recurrence of the disease

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Speaker 1: at the same time try to make sure that we

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Speaker 1: keep functioning as an economy. Now, obviously we know that

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Speaker 1: we have to balance that in some way against the

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Speaker 1: constitutional interests and work and then travel. And so the

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Speaker 1: question is how would the court parts that out. They

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Speaker 1: would be demanding they want to make sure that the

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Speaker 1: antibody test is somewhat scientifically back. We can't have a

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Speaker 1: year of proof that the antibody test would be exact.

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Speaker 1: But I think that the courts would want to see

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Speaker 1: the scientific evidence to make sure that there's a good

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Speaker 1: prediction that there would be limited over inclusiveness and limited

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Speaker 1: under inclusiveness. But it's also what are the terms. Can

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Speaker 1: you get retested every two weeks? And what about the cost.

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Speaker 1: One of my concerns is that if we have this

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Speaker 1: kind of test, how do you get a test for

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Speaker 1: millions of people ready so quickly? And if the government

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Speaker 1: would charge for it, I think that'd be a violation

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Speaker 1: of due process because you can't condition someone's right to

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Speaker 1: work or someone's right to travel based upon the expense

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Speaker 1: to get to a testing center or the expense of

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Speaker 1: the test itself. So I think that it's not just

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Speaker 1: a question of how strong the government's interests is. I

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Speaker 1: think the government's interest is strong here at least if

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Speaker 1: we understand the science. But it's how the program is shaped.

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Speaker 1: Is it free? Can someone challenge it after seven days

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Speaker 1: and say they think they've perhaps caught the disease and

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Speaker 1: therefore have the antibodies? And how long would this last?

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Speaker 1: With his last three years, with his last three weeks,

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Speaker 1: three months? The duration itself may be a factor in

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Speaker 1: the balance that the court would have to consider. The

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Speaker 1: Governor said that he has asked the FDA for expedit

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Speaker 1: approval of a finger prick test that could be used

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Speaker 1: on a hundred thousand New Yorkers a day, which is

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Speaker 1: a drop in the bucket of New Yorker So who

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Speaker 1: gets to be tested first? Once you get away from

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Speaker 1: doctors and nurses. It's incredibly important if you're going to

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Speaker 1: say this test determines whether you can work or not,

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Speaker 1: or travel or not. It's critically important that this be

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Speaker 1: available to everybody, because we don't want to fence people

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Speaker 1: out in society based upon the fact that they just

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Speaker 1: don't have availability to the test. And so I think

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Speaker 1: we have to wait until this test can be massively

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Speaker 1: reproduced before we can say this criterion besides whether somebody

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Speaker 1: can work or travel. This is a voluntary test on

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Speaker 1: its face, but it's involuntary in another way, and that

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Speaker 1: you have to take it in order to go on

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Speaker 1: with your life. Are there any Fourth Amendment concerns? So

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Speaker 1: clearly I think this would be a Fourth Amendment search.

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Speaker 1: As you say, probably it wouldn't be compulsory, though some

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Speaker 1: states might make a compulsory but so much rise on

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Speaker 1: taking this test, that the coercion involved would say that

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Speaker 1: people really don't have a fair choice about whether to

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Speaker 1: take the test. Nonetheless, I think the government has a

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Speaker 1: strong argument that says that a warrant for the search

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Speaker 1: would not be needed because this is a kind of

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Speaker 1: exceptional circumstance and administrative need search unrelated to criminal law enforcement.

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Speaker 1: Where the courts I think would side with the government

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Speaker 1: saying even though this is a search, because a blood

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Speaker 1: test is considered a search, that because the blood tests

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Speaker 1: as intrusive that be it can reveal many details about

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Speaker 1: one that it does have to conform to the Fourth Amendment.

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Speaker 1: But here the regularity of the search, the administrative needs

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Speaker 1: of the search unrelated to law enforcement, would convince a

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Speaker 1: court that the Fourth Amendment would not be violated. Thanks Harold.

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Speaker 1: That's Harold Granted, professor at the Chicago Kent College of Law.

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Speaker 1: Every night, exactly at seven, this is what you hear

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Speaker 1: as New Yorkers clap, cheer, ring bells, and bang pots

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Speaker 1: and pens to celebrate the healthcare workers risking their lives

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Speaker 1: to save others. But some hospitals are not extending that

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Speaker 1: same cheer too. Doctors and nurses who post negative comments

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Speaker 1: about their working conditions on social media. Joining me is

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Speaker 1: Olivia Carvil, Bloomberg reporter start by telling us about Joanna Porter,

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Speaker 1: a nurse in Los Angeles and what happened to her. So,

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Speaker 1: Joanna Porter works in the emergency department and whist tells

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Speaker 1: hospital in Los Angeles, and she took a sealfie of

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Speaker 1: herself in a surgical mask and posted it to Facebook.

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Speaker 1: She was posting because she wanted to raise awareness among

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Speaker 1: her friends and families about the shortage of personal protective

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Speaker 1: equipment inside the hospital, and she told people in the

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Speaker 1: post that her hospital was actually rationing the PPE or

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Speaker 1: personal protective equipment from a locked cage, so she asked

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Speaker 1: her friends to donate protective gail directly to the nurses

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Speaker 1: on the front line. She also spoke to a group

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Speaker 1: of colleagues who work on her award and she told

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Speaker 1: them that the ward had been turned into a COVID

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Speaker 1: only would and she disclosed in this group chat the

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Speaker 1: room numbers of patients who had already tested positives for

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Speaker 1: the virus. And a few days after this, she got

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Speaker 1: a call from her hospital saying she was going to

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Speaker 1: be suspended without pay. Hospitals usually have strict rules for

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Speaker 1: employees talking to the media. Are they expanding those rules

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Speaker 1: to bar employees from speaking to the media even more

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Speaker 1: so or getting on social media. That's right, they're abandoning

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Speaker 1: the existing rules they had and they're enforcing new ones

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Speaker 1: entirely during COVID. That's what we've seen across the country.

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Speaker 1: And you're right that hospitals have always had a really

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Speaker 1: strict policy when it comes to talking publicly, and they

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Speaker 1: do this for obvious reasons. They need to protect the

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Speaker 1: privacy of their patients. You know, it's a hip of

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Speaker 1: violation if you're going to disclose any patient information to

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Speaker 1: the public. And also just because they want to monitor

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Speaker 1: the message that is being sent publicly from their facility

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Speaker 1: or their institution. They wanted to come from one voice

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Speaker 1: that is saying the same thing. Corporations do this all

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Speaker 1: the time, so they do have these strict guidelines in play.

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Speaker 1: If you're going to be approached by the media, they

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Speaker 1: are encouraging staff to go through the correct corporate communications channel,

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Speaker 1: go through the tr team, don't speak on behalf of

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Speaker 1: the organization, and just don't respond to media queries. But

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Speaker 1: in the day and age of COVID, with all of

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Speaker 1: these shortages of personal protective equipment, with hospitals becoming overrun,

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Speaker 1: with health care workers falling sick, A lot of people

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Speaker 1: thought that those policies were too strict and thought that

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Speaker 1: frontline workers should have the ability to speak out if

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Speaker 1: they feel concerned that they themselves are going to fall

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Speaker 1: l or if they want to raise the alarm about

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Speaker 1: this lack of protective gear, which in turn could lead

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Speaker 1: to donations or could put pressure on the right authorities

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Speaker 1: to provide them with the equipment that they need to

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Speaker 1: be working on the front line safely. I just want

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Speaker 1: to question about Joanna. Did she divulge any patient names?

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Speaker 1: I know you said the room numbers, but did she

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Speaker 1: give any information about the patients that you could identify

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Speaker 1: them with? So that's the question here is like hospitals

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Speaker 1: have accused Joanna and other healthier workers of violating Hipper

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Speaker 1: when they're writing on Facebook, And here's this question, how

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Speaker 1: much can a hospital or an employer police what you're

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Speaker 1: writing on social media? And does that get more into

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Speaker 1: this kind of complicated area of freedom of speech and

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Speaker 1: around Joanna's case, in particular, what she did disclose as

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Speaker 1: the hospital room number of patients who had COVID, and

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Speaker 1: arguably some of the experts that I talked to said, well,

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Speaker 1: any information that could lead you to the identity of

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Speaker 1: a patient could be a hipper violation. But arguing against

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Speaker 1: that is that she was writing in a closed Facebook

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Speaker 1: message in group with nurses on her award, And also

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Speaker 1: there's a no visitor policy and hospitals at the moment,

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Speaker 1: so no one can try and find that particular room

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Speaker 1: to look to see which patient was inside. So in

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Speaker 1: her particular case, it's pretty complicated. She's since been reinstated,

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Speaker 1: So you could argue that the hospital's investigation found that

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Speaker 1: disclosing the patient room number wasn't a hyper violation, or

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Speaker 1: that they folded from the public treasure because a lot

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Speaker 1: of media outlets wrote about Okay, so this seems to

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Speaker 1: be a murky legal area. Can your boss censor your

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Speaker 1: social media posts? Is there any law on it? And

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Speaker 1: a lot of the lawyers I talked to about this

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Speaker 1: asking that exact question, like what legal rights do these

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Speaker 1: workers have? What are the potential legal avenues that they

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Speaker 1: can go down to try and get reinstated or to

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Speaker 1: file a lawsuit, And the response I got is that

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Speaker 1: they have pretty much been put in an impossible position.

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Speaker 1: They're in a legally difficult place and a morally difficult place.

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Speaker 1: They have an ethical obligation to go and treat their patients,

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Speaker 1: but if they don't feel safe doing so, is not

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Speaker 1: a lot of legal avenues for them to go down.

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Speaker 1: They can file an ocean complaint that they didn't feel

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Speaker 1: like they had safe working conditions, or they can try

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Speaker 1: and file a whistle blower violation lawsuit saying that they

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Speaker 1: should be protected under the Whistleblower Protection Act for raising

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Speaker 1: the alarm about this situation. Thanks Olivia. That's Olivia Carville,

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Speaker 1: Bloomberg reporter. Thanks for listening to the Bloomberg Law Podcast.

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Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,

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Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.

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Speaker 1: This is Bloomberg. Yeah,