Speaker 1: You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: Government officials across the country are saying the key to
Speaker 1: reopening the economy is wide scale antibody testing to identify
Speaker 1: who has immunity to COVID nineteen. New York's Governor Andrew
Speaker 1: Cuomo has asked the f d A for the okay
Speaker 1: to test one thousand residents a day, saying it's a
Speaker 1: step on the long road back. It's going to be
Speaker 1: a gradual, phased process, and it's going to be reliant
Speaker 1: on testing, UH, testing of antibodies, testing for diagnostic results,
Speaker 1: and testing on a scale that we have not done before.
Speaker 1: But Dr Robert Redfield, director of the c d C,
Speaker 1: has pointed out the limits of antibody testing. Our working
Speaker 1: assumption is that individuals who develop antibody will have protective immunity,
Speaker 1: that austion is, how long, and when a state determines
Speaker 1: who can return to work or school with a predictive test,
Speaker 1: the legal challenges are sure to follow. Joining me is
Speaker 1: Harold Crant, professor at the Chicago Kent College of Law.
Speaker 1: Using these antibody tests would mean isolating someone not based
Speaker 1: on what virus they're carrying, but based on the fact
Speaker 1: that they're not immune to the virus, even though it's
Speaker 1: something they may never get. You know, what's startling about
Speaker 1: this development is that governments are considering creating two classes
Speaker 1: of citizens, and as you mentioned, the one class of
Speaker 1: citizens will be in a very inferior place, will be
Speaker 1: locked to their homes, can't travel, can't possibly work just
Speaker 1: because of the fact that they don't have the anivice,
Speaker 1: because the fact that they may not be immune from
Speaker 1: this awful disease. So the state would be deciding whether
Speaker 1: someone has the right to work based on a predictive
Speaker 1: test that's not definitive and that impinges on civil liberties.
Speaker 1: It would definitely be challenging core, I would think so.
Speaker 1: Already we've seen these stay at home orders challenged by
Speaker 1: businesses who claim to be essential businesses, and the sweeping
Speaker 1: magnitude of this two class system I'm sure would foment
Speaker 1: much more litigation. I mean, what you'd be saying is
Speaker 1: that one group of citizens they can work, they can
Speaker 1: help their families, they can provide for them, maybe they'll
Speaker 1: get even a premium for working, and the other group
Speaker 1: has to be relegated to their homes. That impinges upon
Speaker 1: the constitutional rights to travel to pursue a livelihood. And
Speaker 1: at the bottom of this is a test for antibodies
Speaker 1: that even scientists say is uncertain how well it will work.
Speaker 1: They'll overpredict and it will underpredict. So what standard of
Speaker 1: review would a court use in a case like this
Speaker 1: we're gonna review is a little bit unprecedented. States have
Speaker 1: articulated their standard review somewhat differently from contagion, but we've
Speaker 1: never had a sort of national wide pandemic before this magnitude,
Speaker 1: LEAs since the Spanish flu. My guests, it would be
Speaker 1: a kind of clear and convincing evidence. That's the standard
Speaker 1: that the Supreme Court is used for involuntary commitment, and
Speaker 1: it seems to me that that's the most directly applicable here.
Speaker 1: So if we take away your liberty not because of
Speaker 1: what you've done, but because of a prediction there, we
Speaker 1: have to meet a demanding standard, and it should be
Speaker 1: a demanding standard, and so it will be some variant
Speaker 1: or close to I believe a clear and convincing standard,
Speaker 1: not the highest that we used for criminal incarceration, but
Speaker 1: much higher than just a normal proponent of the evidence
Speaker 1: burden of proof, Why not the highest standard here, since
Speaker 1: you're basically putting somewhat in the prison of their own home.
Speaker 1: We are, but I think that there's a recognition of
Speaker 1: the fact just as we are have in the civil
Speaker 1: commitment of people who are dangerous. That's public health and
Speaker 1: public safety demand extraordinary measures. And in this case, everything
Speaker 1: we know about science says that even if the tests
Speaker 1: aren't entirely accurate, there is something to be said about
Speaker 1: trying to get the economy back together while we prevent
Speaker 1: a continuing outbreak of this disease. So describe the balancing test.
Speaker 1: What is balanced against what? So the state's interests here
Speaker 1: would be to protect against a recurrence of the disease
Speaker 1: at the same time try to make sure that we
Speaker 1: keep functioning as an economy. Now, obviously we know that
Speaker 1: we have to balance that in some way against the
Speaker 1: constitutional interests and work and then travel. And so the
Speaker 1: question is how would the court parts that out. They
Speaker 1: would be demanding they want to make sure that the
Speaker 1: antibody test is somewhat scientifically back. We can't have a
Speaker 1: year of proof that the antibody test would be exact.
Speaker 1: But I think that the courts would want to see
Speaker 1: the scientific evidence to make sure that there's a good
Speaker 1: prediction that there would be limited over inclusiveness and limited
Speaker 1: under inclusiveness. But it's also what are the terms. Can
Speaker 1: you get retested every two weeks? And what about the cost.
Speaker 1: One of my concerns is that if we have this
Speaker 1: kind of test, how do you get a test for
Speaker 1: millions of people ready so quickly? And if the government
Speaker 1: would charge for it, I think that'd be a violation
Speaker 1: of due process because you can't condition someone's right to
Speaker 1: work or someone's right to travel based upon the expense
Speaker 1: to get to a testing center or the expense of
Speaker 1: the test itself. So I think that it's not just
Speaker 1: a question of how strong the government's interests is. I
Speaker 1: think the government's interest is strong here at least if
Speaker 1: we understand the science. But it's how the program is shaped.
Speaker 1: Is it free? Can someone challenge it after seven days
Speaker 1: and say they think they've perhaps caught the disease and
Speaker 1: therefore have the antibodies? And how long would this last?
Speaker 1: With his last three years, with his last three weeks,
Speaker 1: three months? The duration itself may be a factor in
Speaker 1: the balance that the court would have to consider. The
Speaker 1: Governor said that he has asked the FDA for expedit
Speaker 1: approval of a finger prick test that could be used
Speaker 1: on a hundred thousand New Yorkers a day, which is
Speaker 1: a drop in the bucket of New Yorker So who
Speaker 1: gets to be tested first? Once you get away from
Speaker 1: doctors and nurses. It's incredibly important if you're going to
Speaker 1: say this test determines whether you can work or not,
Speaker 1: or travel or not. It's critically important that this be
Speaker 1: available to everybody, because we don't want to fence people
Speaker 1: out in society based upon the fact that they just
Speaker 1: don't have availability to the test. And so I think
Speaker 1: we have to wait until this test can be massively
Speaker 1: reproduced before we can say this criterion besides whether somebody
Speaker 1: can work or travel. This is a voluntary test on
Speaker 1: its face, but it's involuntary in another way, and that
Speaker 1: you have to take it in order to go on
Speaker 1: with your life. Are there any Fourth Amendment concerns? So
Speaker 1: clearly I think this would be a Fourth Amendment search.
Speaker 1: As you say, probably it wouldn't be compulsory, though some
Speaker 1: states might make a compulsory but so much rise on
Speaker 1: taking this test, that the coercion involved would say that
Speaker 1: people really don't have a fair choice about whether to
Speaker 1: take the test. Nonetheless, I think the government has a
Speaker 1: strong argument that says that a warrant for the search
Speaker 1: would not be needed because this is a kind of
Speaker 1: exceptional circumstance and administrative need search unrelated to criminal law enforcement.
Speaker 1: Where the courts I think would side with the government
Speaker 1: saying even though this is a search, because a blood
Speaker 1: test is considered a search, that because the blood tests
Speaker 1: as intrusive that be it can reveal many details about
Speaker 1: one that it does have to conform to the Fourth Amendment.
Speaker 1: But here the regularity of the search, the administrative needs
Speaker 1: of the search unrelated to law enforcement, would convince a
Speaker 1: court that the Fourth Amendment would not be violated. Thanks Harold.
Speaker 1: That's Harold Granted, professor at the Chicago Kent College of Law.
Speaker 1: Every night, exactly at seven, this is what you hear
Speaker 1: as New Yorkers clap, cheer, ring bells, and bang pots
Speaker 1: and pens to celebrate the healthcare workers risking their lives
Speaker 1: to save others. But some hospitals are not extending that
Speaker 1: same cheer too. Doctors and nurses who post negative comments
Speaker 1: about their working conditions on social media. Joining me is
Speaker 1: Olivia Carvil, Bloomberg reporter start by telling us about Joanna Porter,
Speaker 1: a nurse in Los Angeles and what happened to her. So,
Speaker 1: Joanna Porter works in the emergency department and whist tells
Speaker 1: hospital in Los Angeles, and she took a sealfie of
Speaker 1: herself in a surgical mask and posted it to Facebook.
Speaker 1: She was posting because she wanted to raise awareness among
Speaker 1: her friends and families about the shortage of personal protective
Speaker 1: equipment inside the hospital, and she told people in the
Speaker 1: post that her hospital was actually rationing the PPE or
Speaker 1: personal protective equipment from a locked cage, so she asked
Speaker 1: her friends to donate protective gail directly to the nurses
Speaker 1: on the front line. She also spoke to a group
Speaker 1: of colleagues who work on her award and she told
Speaker 1: them that the ward had been turned into a COVID
Speaker 1: only would and she disclosed in this group chat the
Speaker 1: room numbers of patients who had already tested positives for
Speaker 1: the virus. And a few days after this, she got
Speaker 1: a call from her hospital saying she was going to
Speaker 1: be suspended without pay. Hospitals usually have strict rules for
Speaker 1: employees talking to the media. Are they expanding those rules
Speaker 1: to bar employees from speaking to the media even more
Speaker 1: so or getting on social media. That's right, they're abandoning
Speaker 1: the existing rules they had and they're enforcing new ones
Speaker 1: entirely during COVID. That's what we've seen across the country.
Speaker 1: And you're right that hospitals have always had a really
Speaker 1: strict policy when it comes to talking publicly, and they
Speaker 1: do this for obvious reasons. They need to protect the
Speaker 1: privacy of their patients. You know, it's a hip of
Speaker 1: violation if you're going to disclose any patient information to
Speaker 1: the public. And also just because they want to monitor
Speaker 1: the message that is being sent publicly from their facility
Speaker 1: or their institution. They wanted to come from one voice
Speaker 1: that is saying the same thing. Corporations do this all
Speaker 1: the time, so they do have these strict guidelines in play.
Speaker 1: If you're going to be approached by the media, they
Speaker 1: are encouraging staff to go through the correct corporate communications channel,
Speaker 1: go through the tr team, don't speak on behalf of
Speaker 1: the organization, and just don't respond to media queries. But
Speaker 1: in the day and age of COVID, with all of
Speaker 1: these shortages of personal protective equipment, with hospitals becoming overrun,
Speaker 1: with health care workers falling sick, A lot of people
Speaker 1: thought that those policies were too strict and thought that
Speaker 1: frontline workers should have the ability to speak out if
Speaker 1: they feel concerned that they themselves are going to fall
Speaker 1: l or if they want to raise the alarm about
Speaker 1: this lack of protective gear, which in turn could lead
Speaker 1: to donations or could put pressure on the right authorities
Speaker 1: to provide them with the equipment that they need to
Speaker 1: be working on the front line safely. I just want
Speaker 1: to question about Joanna. Did she divulge any patient names?
Speaker 1: I know you said the room numbers, but did she
Speaker 1: give any information about the patients that you could identify
Speaker 1: them with? So that's the question here is like hospitals
Speaker 1: have accused Joanna and other healthier workers of violating Hipper
Speaker 1: when they're writing on Facebook, And here's this question, how
Speaker 1: much can a hospital or an employer police what you're
Speaker 1: writing on social media? And does that get more into
Speaker 1: this kind of complicated area of freedom of speech and
Speaker 1: around Joanna's case, in particular, what she did disclose as
Speaker 1: the hospital room number of patients who had COVID, and
Speaker 1: arguably some of the experts that I talked to said, well,
Speaker 1: any information that could lead you to the identity of
Speaker 1: a patient could be a hipper violation. But arguing against
Speaker 1: that is that she was writing in a closed Facebook
Speaker 1: message in group with nurses on her award, And also
Speaker 1: there's a no visitor policy and hospitals at the moment,
Speaker 1: so no one can try and find that particular room
Speaker 1: to look to see which patient was inside. So in
Speaker 1: her particular case, it's pretty complicated. She's since been reinstated,
Speaker 1: So you could argue that the hospital's investigation found that
Speaker 1: disclosing the patient room number wasn't a hyper violation, or
Speaker 1: that they folded from the public treasure because a lot
Speaker 1: of media outlets wrote about Okay, so this seems to
Speaker 1: be a murky legal area. Can your boss censor your
Speaker 1: social media posts? Is there any law on it? And
Speaker 1: a lot of the lawyers I talked to about this
Speaker 1: asking that exact question, like what legal rights do these
Speaker 1: workers have? What are the potential legal avenues that they
Speaker 1: can go down to try and get reinstated or to
Speaker 1: file a lawsuit, And the response I got is that
Speaker 1: they have pretty much been put in an impossible position.
Speaker 1: They're in a legally difficult place and a morally difficult place.
Speaker 1: They have an ethical obligation to go and treat their patients,
Speaker 1: but if they don't feel safe doing so, is not
Speaker 1: a lot of legal avenues for them to go down.
Speaker 1: They can file an ocean complaint that they didn't feel
Speaker 1: like they had safe working conditions, or they can try
Speaker 1: and file a whistle blower violation lawsuit saying that they
Speaker 1: should be protected under the Whistleblower Protection Act for raising
Speaker 1: the alarm about this situation. Thanks Olivia. That's Olivia Carville,
Speaker 1: Bloomberg reporter. Thanks for listening to the Bloomberg Law Podcast.
Speaker 1: You can subscribe and listen to the show on Apple podcast, SoundCloud,
Speaker 1: and on Bloomberg dot com slash podcast. I'm June Brosso.
Speaker 1: This is Bloomberg. Yeah,