WEBVTT - Coronavirus Antibody Testing Raises Legal Issues

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<v Speaker 1>You're listening to Bloomberg Law with June Grassoe from Bloomberg Radio.

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<v Speaker 1>Government officials across the country are saying the key to

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<v Speaker 1>reopening the economy is wide scale antibody testing to identify

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<v Speaker 1>who has immunity to COVID nineteen. New York's Governor Andrew

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<v Speaker 1>Cuomo has asked the f d A for the okay

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<v Speaker 1>to test one thousand residents a day, saying it's a

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<v Speaker 1>step on the long road back. It's going to be

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<v Speaker 1>a gradual, phased process, and it's going to be reliant

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<v Speaker 1>on testing, UH, testing of antibodies, testing for diagnostic results,

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<v Speaker 1>and testing on a scale that we have not done before.

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<v Speaker 1>But Dr Robert Redfield, director of the c d C,

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<v Speaker 1>has pointed out the limits of antibody testing. Our working

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<v Speaker 1>assumption is that individuals who develop antibody will have protective immunity,

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<v Speaker 1>that austion is, how long, and when a state determines

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<v Speaker 1>who can return to work or school with a predictive test,

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<v Speaker 1>the legal challenges are sure to follow. Joining me is

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<v Speaker 1>Harold Crant, professor at the Chicago Kent College of Law.

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<v Speaker 1>Using these antibody tests would mean isolating someone not based

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<v Speaker 1>on what virus they're carrying, but based on the fact

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

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

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<v Speaker 1>this development is that governments are considering creating two classes

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<v Speaker 1>of citizens, and as you mentioned, the one class of

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<v Speaker 1>citizens will be in a very inferior place, will be

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<v Speaker 1>locked to their homes, can't travel, can't possibly work just

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<v Speaker 1>because of the fact that they don't have the anivice,

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<v Speaker 1>because the fact that they may not be immune from

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<v Speaker 1>this awful disease. So the state would be deciding whether

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<v Speaker 1>someone has the right to work based on a predictive

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<v Speaker 1>test that's not definitive and that impinges on civil liberties.

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<v Speaker 1>It would definitely be challenging core, I would think so.

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<v Speaker 1>Already we've seen these stay at home orders challenged by

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<v Speaker 1>businesses who claim to be essential businesses, and the sweeping

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<v Speaker 1>magnitude of this two class system I'm sure would foment

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

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<v Speaker 1>that one group of citizens they can work, they can

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<v Speaker 1>help their families, they can provide for them, maybe they'll

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<v Speaker 1>get even a premium for working, and the other group

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<v Speaker 1>has to be relegated to their homes. That impinges upon

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<v Speaker 1>the constitutional rights to travel to pursue a livelihood. And

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<v Speaker 1>at the bottom of this is a test for antibodies

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<v Speaker 1>that even scientists say is uncertain how well it will work.

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<v Speaker 1>They'll overpredict and it will underpredict. So what standard of

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<v Speaker 1>review would a court use in a case like this

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<v Speaker 1>we're gonna review is a little bit unprecedented. States have

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<v Speaker 1>articulated their standard review somewhat differently from contagion, but we've

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<v Speaker 1>never had a sort of national wide pandemic before this magnitude,

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<v Speaker 1>LEAs since the Spanish flu. My guests, it would be

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<v Speaker 1>a kind of clear and convincing evidence. That's the standard

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<v Speaker 1>that the Supreme Court is used for involuntary commitment, and

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<v Speaker 1>it seems to me that that's the most directly applicable here.

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<v Speaker 1>So if we take away your liberty not because of

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<v Speaker 1>what you've done, but because of a prediction there, we

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<v Speaker 1>have to meet a demanding standard, and it should be

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<v Speaker 1>a demanding standard, and so it will be some variant

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<v Speaker 1>or close to I believe a clear and convincing standard,

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<v Speaker 1>not the highest that we used for criminal incarceration, but

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<v Speaker 1>much higher than just a normal proponent of the evidence

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<v Speaker 1>burden of proof, Why not the highest standard here, since

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

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<v Speaker 1>We are, but I think that there's a recognition of

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<v Speaker 1>the fact just as we are have in the civil

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<v Speaker 1>commitment of people who are dangerous. That's public health and

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<v Speaker 1>public safety demand extraordinary measures. And in this case, everything

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<v Speaker 1>we know about science says that even if the tests

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<v Speaker 1>aren't entirely accurate, there is something to be said about

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<v Speaker 1>trying to get the economy back together while we prevent

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<v Speaker 1>a continuing outbreak of this disease. So describe the balancing test.

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<v Speaker 1>What is balanced against what? So the state's interests here

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<v Speaker 1>would be to protect against a recurrence of the disease

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<v Speaker 1>at the same time try to make sure that we

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<v Speaker 1>keep functioning as an economy. Now, obviously we know that

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<v Speaker 1>we have to balance that in some way against the

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<v Speaker 1>constitutional interests and work and then travel. And so the

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<v Speaker 1>question is how would the court parts that out. They

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<v Speaker 1>would be demanding they want to make sure that the

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<v Speaker 1>antibody test is somewhat scientifically back. We can't have a

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<v Speaker 1>year of proof that the antibody test would be exact.

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<v Speaker 1>But I think that the courts would want to see

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<v Speaker 1>the scientific evidence to make sure that there's a good

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<v Speaker 1>prediction that there would be limited over inclusiveness and limited

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<v Speaker 1>under inclusiveness. But it's also what are the terms. Can

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<v Speaker 1>you get retested every two weeks? And what about the cost.

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<v Speaker 1>One of my concerns is that if we have this

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<v Speaker 1>kind of test, how do you get a test for

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<v Speaker 1>millions of people ready so quickly? And if the government

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<v Speaker 1>would charge for it, I think that'd be a violation

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<v Speaker 1>of due process because you can't condition someone's right to

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<v Speaker 1>work or someone's right to travel based upon the expense

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<v Speaker 1>to get to a testing center or the expense of

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<v Speaker 1>the test itself. So I think that it's not just

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<v Speaker 1>a question of how strong the government's interests is. I

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<v Speaker 1>think the government's interest is strong here at least if

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<v Speaker 1>we understand the science. But it's how the program is shaped.

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<v Speaker 1>Is it free? Can someone challenge it after seven days

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<v Speaker 1>and say they think they've perhaps caught the disease and

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<v Speaker 1>therefore have the antibodies? And how long would this last?

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<v Speaker 1>With his last three years, with his last three weeks,

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<v Speaker 1>three months? The duration itself may be a factor in

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<v Speaker 1>the balance that the court would have to consider. The

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<v Speaker 1>Governor said that he has asked the FDA for expedit

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<v Speaker 1>approval of a finger prick test that could be used

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<v Speaker 1>on a hundred thousand New Yorkers a day, which is

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<v Speaker 1>a drop in the bucket of New Yorker So who

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<v Speaker 1>gets to be tested first? Once you get away from

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

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<v Speaker 1>say this test determines whether you can work or not,

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<v Speaker 1>or travel or not. It's critically important that this be

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<v Speaker 1>available to everybody, because we don't want to fence people

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<v Speaker 1>out in society based upon the fact that they just

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<v Speaker 1>don't have availability to the test. And so I think

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<v Speaker 1>we have to wait until this test can be massively

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<v Speaker 1>reproduced before we can say this criterion besides whether somebody

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<v Speaker 1>can work or travel. This is a voluntary test on

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<v Speaker 1>its face, but it's involuntary in another way, and that

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<v Speaker 1>you have to take it in order to go on

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<v Speaker 1>with your life. Are there any Fourth Amendment concerns? So

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<v Speaker 1>clearly I think this would be a Fourth Amendment search.

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<v Speaker 1>As you say, probably it wouldn't be compulsory, though some

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<v Speaker 1>states might make a compulsory but so much rise on

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<v Speaker 1>taking this test, that the coercion involved would say that

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<v Speaker 1>people really don't have a fair choice about whether to

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<v Speaker 1>take the test. Nonetheless, I think the government has a

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<v Speaker 1>strong argument that says that a warrant for the search

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<v Speaker 1>would not be needed because this is a kind of

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<v Speaker 1>exceptional circumstance and administrative need search unrelated to criminal law enforcement.

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<v Speaker 1>Where the courts I think would side with the government

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<v Speaker 1>saying even though this is a search, because a blood

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<v Speaker 1>test is considered a search, that because the blood tests

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<v Speaker 1>as intrusive that be it can reveal many details about

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<v Speaker 1>one that it does have to conform to the Fourth Amendment.

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<v Speaker 1>But here the regularity of the search, the administrative needs

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<v Speaker 1>of the search unrelated to law enforcement, would convince a

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<v Speaker 1>court that the Fourth Amendment would not be violated. Thanks Harold.

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

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<v Speaker 1>Every night, exactly at seven, this is what you hear

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<v Speaker 1>as New Yorkers clap, cheer, ring bells, and bang pots

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<v Speaker 1>and pens to celebrate the healthcare workers risking their lives

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<v Speaker 1>to save others. But some hospitals are not extending that

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<v Speaker 1>same cheer too. Doctors and nurses who post negative comments

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<v Speaker 1>about their working conditions on social media. Joining me is

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<v Speaker 1>Olivia Carvil, Bloomberg reporter start by telling us about Joanna Porter,

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<v Speaker 1>a nurse in Los Angeles and what happened to her. So,

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<v Speaker 1>Joanna Porter works in the emergency department and whist tells

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<v Speaker 1>hospital in Los Angeles, and she took a sealfie of

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<v Speaker 1>herself in a surgical mask and posted it to Facebook.

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<v Speaker 1>She was posting because she wanted to raise awareness among

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<v Speaker 1>her friends and families about the shortage of personal protective

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<v Speaker 1>equipment inside the hospital, and she told people in the

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<v Speaker 1>post that her hospital was actually rationing the PPE or

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<v Speaker 1>personal protective equipment from a locked cage, so she asked

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<v Speaker 1>her friends to donate protective gail directly to the nurses

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<v Speaker 1>on the front line. She also spoke to a group

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<v Speaker 1>of colleagues who work on her award and she told

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<v Speaker 1>them that the ward had been turned into a COVID

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<v Speaker 1>only would and she disclosed in this group chat the

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<v Speaker 1>room numbers of patients who had already tested positives for

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<v Speaker 1>the virus. And a few days after this, she got

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<v Speaker 1>a call from her hospital saying she was going to

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<v Speaker 1>be suspended without pay. Hospitals usually have strict rules for

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<v Speaker 1>employees talking to the media. Are they expanding those rules

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<v Speaker 1>to bar employees from speaking to the media even more

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

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<v Speaker 1>the existing rules they had and they're enforcing new ones

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

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<v Speaker 1>And you're right that hospitals have always had a really

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<v Speaker 1>strict policy when it comes to talking publicly, and they

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<v Speaker 1>do this for obvious reasons. They need to protect the

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<v Speaker 1>privacy of their patients. You know, it's a hip of

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<v Speaker 1>violation if you're going to disclose any patient information to

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<v Speaker 1>the public. And also just because they want to monitor

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<v Speaker 1>the message that is being sent publicly from their facility

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<v Speaker 1>or their institution. They wanted to come from one voice

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<v Speaker 1>that is saying the same thing. Corporations do this all

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<v Speaker 1>the time, so they do have these strict guidelines in play.

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<v Speaker 1>If you're going to be approached by the media, they

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<v Speaker 1>are encouraging staff to go through the correct corporate communications channel,

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<v Speaker 1>go through the tr team, don't speak on behalf of

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

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<v Speaker 1>in the day and age of COVID, with all of

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<v Speaker 1>these shortages of personal protective equipment, with hospitals becoming overrun,

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<v Speaker 1>with health care workers falling sick, A lot of people

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<v Speaker 1>thought that those policies were too strict and thought that

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<v Speaker 1>frontline workers should have the ability to speak out if

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<v Speaker 1>they feel concerned that they themselves are going to fall

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<v Speaker 1>l or if they want to raise the alarm about

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<v Speaker 1>this lack of protective gear, which in turn could lead

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<v Speaker 1>to donations or could put pressure on the right authorities

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<v Speaker 1>to provide them with the equipment that they need to

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<v Speaker 1>be working on the front line safely. I just want

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<v Speaker 1>to question about Joanna. Did she divulge any patient names?

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<v Speaker 1>I know you said the room numbers, but did she

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<v Speaker 1>give any information about the patients that you could identify

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<v Speaker 1>them with? So that's the question here is like hospitals

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<v Speaker 1>have accused Joanna and other healthier workers of violating Hipper

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

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<v Speaker 1>much can a hospital or an employer police what you're

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<v Speaker 1>writing on social media? And does that get more into

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<v Speaker 1>this kind of complicated area of freedom of speech and

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<v Speaker 1>around Joanna's case, in particular, what she did disclose as

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<v Speaker 1>the hospital room number of patients who had COVID, and

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<v Speaker 1>arguably some of the experts that I talked to said, well,

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<v Speaker 1>any information that could lead you to the identity of

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<v Speaker 1>a patient could be a hipper violation. But arguing against

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<v Speaker 1>that is that she was writing in a closed Facebook

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<v Speaker 1>message in group with nurses on her award, And also

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<v Speaker 1>there's a no visitor policy and hospitals at the moment,

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<v Speaker 1>so no one can try and find that particular room

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<v Speaker 1>to look to see which patient was inside. So in

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

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<v Speaker 1>So you could argue that the hospital's investigation found that

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<v Speaker 1>disclosing the patient room number wasn't a hyper violation, or

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<v Speaker 1>that they folded from the public treasure because a lot

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<v Speaker 1>of media outlets wrote about Okay, so this seems to

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<v Speaker 1>be a murky legal area. Can your boss censor your

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<v Speaker 1>social media posts? Is there any law on it? And

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<v Speaker 1>a lot of the lawyers I talked to about this

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<v Speaker 1>asking that exact question, like what legal rights do these

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<v Speaker 1>workers have? What are the potential legal avenues that they

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<v Speaker 1>can go down to try and get reinstated or to

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<v Speaker 1>file a lawsuit, And the response I got is that

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<v Speaker 1>they have pretty much been put in an impossible position.

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<v Speaker 1>They're in a legally difficult place and a morally difficult place.

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<v Speaker 1>They have an ethical obligation to go and treat their patients,

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<v Speaker 1>but if they don't feel safe doing so, is not

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<v Speaker 1>a lot of legal avenues for them to go down.

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<v Speaker 1>They can file an ocean complaint that they didn't feel

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<v Speaker 1>like they had safe working conditions, or they can try

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<v Speaker 1>and file a whistle blower violation lawsuit saying that they

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<v Speaker 1>should be protected under the Whistleblower Protection Act for raising

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<v Speaker 1>the alarm about this situation. Thanks Olivia. That's Olivia Carville,

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<v Speaker 1>Bloomberg reporter. Thanks for listening to the Bloomberg Law Podcast.

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<v Speaker 1>You can subscribe and listen to the show on Apple podcast, SoundCloud,

0:13:29.360 --> 0:13:33.240
<v Speaker 1>and on Bloomberg dot com slash podcast. I'm June Brosso.

0:13:33.720 --> 0:13:38.720
<v Speaker 1>This is Bloomberg. Yeah,