Coronavirus Antibody Testing Raises Legal Issues

step on the long road back. It's going to be a gradual, phased process, and it's going to be reliant on testing, UH, testing of antibodies, testing for diagnostic results, and testing on a scale that we have not done before. But Dr Robert Redfield, director of the c d C,

has pointed out the limits of antibody testing. Our working assumption is that individuals who develop antibody will have protective immunity, that austion is, how long, and when a state determines who can return to work or school with a predictive test, the legal challenges are sure to follow. Joining me is Harold Crant, professor at the Chicago Kent College of Law.

Using these antibody tests would mean isolating someone not based on what virus they're carrying, but based on the fact that they're not immune to the virus, even though it's

something they may never get. You know, what's startling about this development is that governments are considering creating two classes of citizens, and as you mentioned, the one class of citizens will be in a very inferior place, will be locked to their homes, can't travel, can't possibly work just because of the fact that they don't have the anivice, because the fact that they may not be immune from

this awful disease. So the state would be deciding whether someone has the right to work based on a predictive test that's not definitive and that impinges on civil liberties. It would definitely be challenging core, I would think so. Already we've seen these stay at home orders challenged by businesses who claim to be essential businesses, and the sweeping magnitude of this two class system I'm sure would foment

much more litigation. I mean, what you'd be saying is that one group of citizens they can work, they can help their families, they can provide for them, maybe they'll get even a premium for working, and the other group has to be relegated to their homes. That impinges upon the constitutional rights to travel to pursue a livelihood. And at the bottom of this is a test for antibodies that even scientists say is uncertain how well it will work.

They'll overpredict and it will underpredict. So what standard of review would a court use in a case like this we're gonna review is a little bit unprecedented. States have articulated their standard review somewhat differently from contagion, but we've never had a sort of national wide pandemic before this magnitude, LEAs since the Spanish flu. My guests, it would be

a kind of clear and convincing evidence. That's the standard that the Supreme Court is used for involuntary commitment, and it seems to me that that's the most directly applicable here.

So if we take away your liberty not because of what you've done, but because of a prediction there, we have to meet a demanding standard, and it should be a demanding standard, and so it will be some variant or close to I believe a clear and convincing standard, not the highest that we used for criminal incarceration, but much higher than just a normal proponent of the evidence burden of proof, Why not the highest standard here, since

you're basically putting somewhat in the prison of their own home. We are, but I think that there's a recognition of the fact just as we are have in the civil commitment of people who are dangerous. That's public health and public safety demand extraordinary measures. And in this case, everything we know about science says that even if the tests aren't entirely accurate, there is something to be said about trying to get the economy back together while we prevent

a continuing outbreak of this disease. So describe the balancing test. What is balanced against what? So the state's interests here would be to protect against a recurrence of the disease at the same time try to make sure that we keep functioning as an economy. Now, obviously we know that we have to balance that in some way against the constitutional interests and work and then travel. And so the

question is how would the court parts that out. They would be demanding they want to make sure that the antibody test is somewhat scientifically back. We can't have a year of proof that the antibody test would be exact. But I think that the courts would want to see the scientific evidence to make sure that there's a good prediction that there would be limited over inclusiveness and limited under inclusiveness. But it's also what are the terms. Can

you get retested every two weeks? And what about the cost. One of my concerns is that if we have this kind of test, how do you get a test for millions of people ready so quickly? And if the government would charge for it, I think that'd be a violation of due process because you can't condition someone's right to work or someone's right to travel based upon the expense to get to a testing center or the expense of the test itself. So I think that it's not just

a question of how strong the government's interests is. I think the government's interest is strong here at least if we understand the science. But it's how the program is shaped. Is it free? Can someone challenge it after seven days and say they think they've perhaps caught the disease and therefore have the antibodies? And how long would this last? With his last three years, with his last three weeks, three months? The duration itself may be a factor in

the balance that the court would have to consider. The Governor said that he has asked the FDA for expedit approval of a finger prick test that could be used on a hundred thousand New Yorkers a day, which is a drop in the bucket of New Yorker So who gets to be tested first? Once you get away from doctors and nurses. It's incredibly important if you're going to say this test determines whether you can work or not,

or travel or not. It's critically important that this be available to everybody, because we don't want to fence people out in society based upon the fact that they just don't have availability to the test. And so I think we have to wait until this test can be massively reproduced before we can say this criterion besides whether somebody can work or travel. This is a voluntary test on its face, but it's involuntary in another way, and that you have to take it in order to go on

with your life. Are there any Fourth Amendment concerns? So clearly I think this would be a Fourth Amendment search. As you say, probably it wouldn't be compulsory, though some states might make a compulsory but so much rise on taking this test, that the coercion involved would say that people really don't have a fair choice about whether to

take the test. Nonetheless, I think the government has a strong argument that says that a warrant for the search would not be needed because this is a kind of exceptional circumstance and administrative need search unrelated to criminal law enforcement.

Where the courts I think would side with the government saying even though this is a search, because a blood test is considered a search, that because the blood tests as intrusive that be it can reveal many details about one that it does have to conform to the Fourth Amendment. But here the regularity of the search, the administrative needs of the search unrelated to law enforcement, would convince a court that the Fourth Amendment would not be violated. Thanks Harold.

That's Harold Granted, professor at the Chicago Kent College of Law. Every night, exactly at seven, this is what you hear as New Yorkers clap, cheer, ring bells, and bang pots and pens to celebrate the healthcare workers risking their lives to save others. But some hospitals are not extending that same cheer too. Doctors and nurses who post negative comments about their working conditions on social media. Joining me is Olivia Carvil, Bloomberg reporter start by telling us about Joanna Porter,

a nurse in Los Angeles and what happened to her. So, Joanna Porter works in the emergency department and whist tells hospital in Los Angeles, and she took a sealfie of herself in a surgical mask and posted it to Facebook.

She was posting because she wanted to raise awareness among her friends and families about the shortage of personal protective equipment inside the hospital, and she told people in the post that her hospital was actually rationing the PPE or personal protective equipment from a locked cage, so she asked her friends to donate protective gail directly to the nurses

on the front line. She also spoke to a group of colleagues who work on her award and she told them that the ward had been turned into a COVID only would and she disclosed in this group chat the room numbers of patients who had already tested positives for the virus. And a few days after this, she got a call from her hospital saying she was going to be suspended without pay. Hospitals usually have strict rules for

employees talking to the media. Are they expanding those rules to bar employees from speaking to the media even more so or getting on social media. That's right, they're abandoning the existing rules they had and they're enforcing new ones entirely during COVID. That's what we've seen across the country. And you're right that hospitals have always had a really strict policy when it comes to talking publicly, and they do this for obvious reasons. They need to protect the

privacy of their patients. You know, it's a hip of violation if you're going to disclose any patient information to the public. And also just because they want to monitor the message that is being sent publicly from their facility or their institution. They wanted to come from one voice that is saying the same thing. Corporations do this all the time, so they do have these strict guidelines in play.

If you're going to be approached by the media, they are encouraging staff to go through the correct corporate communications channel, go through the tr team, don't speak on behalf of

the organization, and just don't respond to media queries. But in the day and age of COVID, with all of these shortages of personal protective equipment, with hospitals becoming overrun, with health care workers falling sick, A lot of people thought that those policies were too strict and thought that frontline workers should have the ability to speak out if they feel concerned that they themselves are going to fall l or if they want to raise the alarm about

this lack of protective gear, which in turn could lead to donations or could put pressure on the right authorities to provide them with the equipment that they need to be working on the front line safely. I just want to question about Joanna. Did she divulge any patient names? I know you said the room numbers, but did she give any information about the patients that you could identify

them with? So that's the question here is like hospitals have accused Joanna and other healthier workers of violating Hipper when they're writing on Facebook, And here's this question, how much can a hospital or an employer police what you're

writing on social media? And does that get more into this kind of complicated area of freedom of speech and around Joanna's case, in particular, what she did disclose as the hospital room number of patients who had COVID, and arguably some of the experts that I talked to said, well, any information that could lead you to the identity of

a patient could be a hipper violation. But arguing against that is that she was writing in a closed Facebook message in group with nurses on her award, And also there's a no visitor policy and hospitals at the moment, so no one can try and find that particular room to look to see which patient was inside. So in

her particular case, it's pretty complicated. She's since been reinstated, So you could argue that the hospital's investigation found that disclosing the patient room number wasn't a hyper violation, or that they folded from the public treasure because a lot of media outlets wrote about Okay, so this seems to be a murky legal area. Can your boss censor your

social media posts? Is there any law on it? And a lot of the lawyers I talked to about this asking that exact question, like what legal rights do these workers have? What are the potential legal avenues that they can go down to try and get reinstated or to file a lawsuit, And the response I got is that they have pretty much been put in an impossible position. They're in a legally difficult place and a morally difficult place.

They have an ethical obligation to go and treat their patients, but if they don't feel safe doing so, is not a lot of legal avenues for them to go down. They can file an ocean complaint that they didn't feel like they had safe working conditions, or they can try and file a whistle blower violation lawsuit saying that they should be protected under the Whistleblower Protection Act for raising the alarm about this situation. Thanks Olivia. That's Olivia Carville,

Bloomberg reporter. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple podcast, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg. Yeah,