Below is a roundup of some recent developments with law and ethics themes related to the enforcement of public health authority during the pandemic, vulnerable populations, and states reopening.
The Americans with Disabilities Act & HIPAA do not bar businesses from requiring visitors wear masks. As the article linked above discusses, anti-mask protesters, who are refusing to wear masks when entering businesses or public spaces where such protective measures are required, are frequently basing their refusal on incorrect interpretations of the Americans with Disabilities Act & HIPAA privacy laws. Situations that cause a direct threat, defined under the Americans with Disabilities Act as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies,” are not given protection under the Americans with Disabilities Act. Mask wearing is meant to reduce the risk of the mask wearer spreading Coronavirus to others, meaning that requiring masks be worn fits under this “direct threat” exemption from ADA policies. Furthermore, HIPAA is a policy that only applies to situations when businesses are collecting identifiable health information for purposes of medical treatment. It would not apply to, say, a grocery store asking people entering their business to wear a mask.
Mask wearing is one of a range of actions, along with steps like hand washing and staying 6 feet away from others, that can be taken by people in public spaces to reduce the spread of Covid-19 through our communities. This is especially important as a recent poll has found a dramatic drop in rates of social distancing.
Federal judge denies Oregon businesses and church an injunction, allowing Oregon governor’s emergency orders to stay in place. On Tuesday, May 19, an Oregon federal judge denied the emergency injunction petition by a coalition of businesses and a nonprofit that was alleging the governor’s emergency stay-home orders violated their constitutional rights and were motivated politically. The U.S. District Judge did not feel the plaintiffs had a strong case, and noted that the the U.S. Supreme Court “has distinctly recognized the authority of a state to enact quarantine law and health law of every description.” Citing to the 1905 Supreme Court case of Jacobson v. Massachusetts, the judge stated, “This court has more than once recognized it as a fundamental principle that persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the state.”
Wake Forest Brief Lecture Series on Pandemic Legal Issues from Wake Forest University Wake Forest University School of Law has posted a fully online symposium titled “Isolated by the Law.” The symposium, which is regularly being updated with new content, features more than a dozen leading public health law experts (including IU McKinney School of Law’s Professor Seema Mohapatra) discussing an array of legal and policy issues arising in the Covid-19 pandemic.
COVID-19 data sharing with law enforcement sparks concern This Associated Press article discusses concerns raised by civil libertarians about the practice used in approximately 2/3 of states to disclose to first responders the addresses of people who test positive for Covid-19. At least 10 states also share the names of people who test positively. This information can offer first responders additional protection when responding to calls for assistance. However, civil liberty and community activists are concerned this may have a chilling effect on peoples’ willingness to go for testing, and may result in potential profiling in African-American and Hispanic communities.
Covid-19 leads to dramatic rise in compassionate release petitions by people incarcerated in Federal prisons. Jails and prisons are among the locations hardest hit by the Covid-19 epidemic. Prisoners who may be at particular risk of severe outcomes due to exposure to Covid-19 can petition to an overseeing court for a compassionate release from incarceration. According to the Federal Bureau of Prisons, Federal judges have ruled on more than 400 petitions for compassionate release of at risk or ill prisoners in March and April 2020, compared with only 16 in the same months last year. More background on the Compassionate Release process can be found in this recent Congressional Research Report to Congress.