COVID-19 Emergency Legal Preparedness Primer As of July 29, 2020 James G. Hodge, Jr., J.D., L.L.M. Peter Kiewit Foundation Professor of Law Director, Western Region Office, Network for Public Health Law ASU Sandra Day O’Connor College of Law [email protected] Contents

❑ COVID-19 Epi Snapshot ❑ Emergency Legal Preparedness/ Response/Recovery Federal | State | Tribal | Local ❑ Public Health Emergency Powers ❑ Constitutional & Other Challenges ❑ Additional Resources/Ask the Network

2 COVID-19 Epi Snapshot Transmission • Transmissible person-to-person with potential infectivity rate exceeding annual influenza. • Asymptomatic persons may clearly infect others. Symptoms • Respiratory symptoms, fever, cough, breathing difficulties, chills, muscle pains, headache, sore throat & loss of smell/taste • In severe cases infection can cause pneumonia, respiratory issues, kidney failure & death. Vaccines & Treatment • There are no effective treatments or vaccines although several

3 options are under close review or early assessments. U.S. COVID Morbidity

Underlying health condition/Risk factor for severe outcomes from respiratory infection (% with condition) • One or more conditions (37.6%) • Diabetes (10.9%) • Chronic lung disease (9.2%) • Cardiovascular disease (9.2%)

8 out of 10 deaths reported in the U.S. have been in adults 65 years old and older

4 Source:4 https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-at-higher-risk.html Emerging Epidemiology Trends

Asymptomatic persons could account Antibodies may be insufficient to for 40-45% of infection spread ward off additional infections

5 potential vaccines are in Phase III Emerging cases surged over 50% 5 clinical trials for safety & efficacy related to re-opening activities Prolonged Effects of COVID-19

• CDC study released July 24, 2020 finds that “COVID-19 can result in prolonged illness even among persons with milder outpatient illness, including young adults.” • 35% of 292 symptomatic respondents reported not having returned to their usual state of health 16 days (median) from testing date: • 26% among those aged 18–34 years • 32% among those aged 35–49 years • 47% among those aged ≥50 years 6 COVID-19 Confirmed Cases & Deaths

Global Cases 16.30 million | Deaths: 649,662 U.S. Cases 4.24 million | Deaths: 146,700 U.S. Stats 26% all cases | 23% all deaths

7 7 Source: https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html Unprecedented Emergency Declarations

Public health authorities and powers vary depending on the type of emergency declared at every level of government

WHO Public Health Emergency Declarations International Emergency of Int’l Concern by Foreign Governments January 30, 2020 Ongoing

Stafford Act or National HHS Public Health Federal Emergencies Act Emergency

Emergency or Public Health State/Tribal Disaster Emergency

Emergency or Public Local Disaster Health 8 Emergency Federal Emergencies/Invocations

HHS National PREP Stafford Defense HHS Public Emer- Act Act Production Health gencies Declar- Emergency Act Emergency Act ation

Jan. Feb. Mar. Mar. Mar. 31 4 13 13 20

9 9 9 HHS Public Health Emergency

Jan. 31: HHS Sec. declares national public health emergency effective as of Jan. 27 • Encourages interjurisdictional coordination • Allows waivers of specific federal laws • Authorizes real-time countermeasures through emergency use authorizations • Supports social distancing measures July 23: Sec. Alex Azar renews PHE declaration for 90 days effective July 25. 10 National Emergencies

Mar. 13: President Trump declares dual emergencies via the National Emergencies Act and §501(b) of the Stafford Act authorizing: • Access to FEMA’s Disaster Relief Fund and reimbursement for eligible emergency protective response measures. • Waivers under SSA §1135 of select Medicare, Medicaid, S-CHIP, HIPAA Privacy Rule requirements • Additional types of federal assistance to states & 11 localities Select Congressional Bills

7/27 6/24 Senate proposes a Emergency House $1 trillion relief bill Protections & Relief providing for a new Act introduced to round of prevent evictions, checks, expanded foreclosures & unemployment unsafe housing benefits & conditions additional school resulting from funding. COVID-19.

6/24 6/22 5/15 Senate introduces a House introduces House passes bill to provide a bill to require funding to address HEROES Act COVID-19 drugs health workforce providing more developed with shortages & economic federal support to disparities stimulus & funds be affordable & highlighted by for contact tracing COVID-19. accessible. 12 Health, Economic Assistance, Liability Protection & Schools (HEALS) Act July 27: Senate proposes HEALS Act, a $1 trillion COVID-19 relief bill, including: • Another round of $1,200 direct payment stimulus checks for individuals; • Increased funding to the Paycheck Protection Program; • Reduced unemployment benefits previously expended by the CARES Act; • Liability protections for businesses so long as they make reasonable efforts to comply with CDC re-opening guidelines; and • $100+ billion in funding for schools and colleges reopening. 13 Major Enacted Federal Legislation

Families First CARES Act PPP & HEA

Mar. 18: Families First Mar. 27: CARES Act Apr. 24: Paycheck Coronavirus Response • Largest stimulus package Protection Program & Act in history Healthcare Enhancement • Private health plans • Requires insurance Act must provide $0 cost providers to cover • Additional funding for coverage for COVID- COVID-19 testing, hospitals & HCPs 19 tests vaccines & preventative • Supports testing & • Temporarily increases services contact tracing efforts federal portion of • Protects volunteer HCWs • Requires governors to Medicaid from liability submit 2020 testing plan • Requires 14 days of • Authorizes PHI • HHS Secretary must paid sick leave for disclosure with written report on testing, cases 14 certain employees patient consent & deaths Federal Agency Coordination

Right click on each image to link to COVID-19 sites

15 Emergency Waivers

Mar. 13: HHS Sec. Azar issues §1135 national waivers (retroactive effect on March 1) re: • EMTALA sanctions for patient relocation purposes • HIPAA Privacy Rule regulations (for limited duration) • In-state licensure requirements for health care workers • Participation restrictions on Medicare, Medicaid, & S- CHIP • Medicare Advantage payment limitations • Stark Law sanctions

April 15: CMS updates waivers for health care providers re: • Telemedicine provisions, facilitating Medicare services • Patient rights surrounding access to medical records, visitation & seclusion • Physical environments to allow care in non-hospital 16 settings during surge ’s COVID Plan

• RestoreFamilies trust First & credibility in public officials • Reinstate daily briefings, ensure decisions are made by public health officials and not politicians, restore the White House National Security Council for Global Health Security and Biodefense • Effective national emergency response • Make testing widely available, create more capacity for prevention, response & treatment, accelerate development of treatment & vaccines, provide timely data & information • Eliminate cost barriers to prevention & treatment • Ensure everyone irrespective of insurance coverage has access to free testing, preventative services & vaccines. • Support workers, small businesses & stabilize the economy • Provide guaranteed paid sick & care-giving leave, expanded unemployment relief & state/local emergency funds. • Lead global responses to COVID-19 • Create a Global Health Emergency Board, advance global pandemic 17 preparedness COVID State & Select Tribal/Local Emergency Declarations

Mason Co. 3/6 Des Moines 3/6 Edmond 3/5 Auburn 3/6 Cowlitz Co. 3/4 Bellevue 3/3 Click on the date of each state to view declarations Snohomish Co. 3/4 Umatilla Reservation 3/4 Minneapolis (MN) 3/16 Lummi Nation 3/3 Kitsap Co. 3/9 Pierce Co. 3/6 Milwaukee (WI) 3/13 Redmond 3/3 Seattle 3/3 Whatcom Co. 3/10 Oglala Sioux Tribe 3/11 Kansas City St. Paul (MN) 3/15 Boston (MA) 3/15 Seattle-King Co. 2/29 Northern Arapaho 3/11 (MO) 3/12 Cooke Co. (IL) 3/9 Cuyahoga Co. Washington Co. 3/4 WA McHenry Co. (IL) 3/11 Clackamas Co. 3/2 2/29 Cincinnati (OH) 3/12 VT 3/12 Hoopa Valley Tribe 3/4 MT ND 3/13 (OH) 3/11 Montgomery 3/13 ME Sacramento Co. 3/4 3/12 MN Co. (PA) 3/9 Nevada Co. 3/4 OR 3/8 3/13 Delaware Co. NH Santa Rosa 3/2 ID 3/7 3/13 (PA) 3/9 3/13 Solano Co. 2/27 SD 3/13 WI 3/10 NY 3/10 3/12 3/10 Marin Co. 3/3 WY MI RI 3/9 Mendocino Co. 3/4 3/13 3/9 New IA 3/9 PA 3/6 Sonoma Co. 3/2 NE 3/13 3/9 York Placer Co. 3/3 NV 3/9 OH 3/16 3/5 DE Santa Cruz Co. 3/2 3/12 IL IN City UT 3/6 WV 3/12 Alameda Co. 2/19 CA CO 3/12 3/6 KS MO 3/4 VA 3/12 D.C. San Fran City 2/25 3/4 3/10 Santa Clara Co. 2/10 3/12 3/13 KY 3/11 3/6 Lexington (KY) Los Angeles Co. 3/4 NC Los Angeles 3/4 TN 3/12 3/10 3/6 Pasadena 3/4 AZ 3/11 OK 3/15 NM AR SC Long Beach 3/4 3/11 3/11 3/13 Orange Co. 2/27 GA San Diego Co. 2/19 AL MS 3/13 3/14 3/14 Salt Lake Co. (UT) 3/6 TX LA Emergency - 33 Salt Lake City (UT) 3/11 3/13 3/11 Navajo Nation 3/11 FL Disaster - 4 Eagle Co. (UT) 3/7 San Antonio 3/2 Houston 3/11 3/1 Phoenix (AZ) 3/13 Bexar Co. 3/2 3/9 Broward Co. 3/10 Public Health Miami-Dade Co. 3/11 Emergency/Disaster - 9 Austin 3/6 Travis Co. 3/6 Emergency + Public Health Emergency - 4 Co. of Hawai’i 2/28 AK – Alaska Public Health Disaster 3/9 County/City Honolulu Co. 3/4 Emergency 3/4 Maui, Kaua’i 3/4 HI - Hawaii Link here for updates re: jurisdictional PR - (Puerto Rico) Emergency 3/12 18 Tribal requests for FEMA disaster relief VI - (Virgin Islands)Emergency 3/13 Initial Timing of State-based Emergency Declarations

Number of States Issuing Initial Emergency Declarations 35 S…

For more information 30 on the current status 29 of state/territorial 25 declarations, see the National Governors Association online 20 resource.

15 16

10 Number of States of Number

5 3 1 1 0 0 0 2/29 3/1-3/5 3/6-3/10 3/11-3/15 3/16-3/20 3/21-3/25 3/26-3/31 Feb-March 2020 19 Select State Emergency Powers Explicitly Invoked by Declarations Note: this table tracks select, express authorities referenced via state emergency declarations (link on each state acronym for access). Additional emergency powers may be authorized under state law through which the declarations are issued. Emergency Powers A A A C C C D F H I I I K L M M M M N N N N O O P R T V U W W W K Z R A O T E L I L N A Y A E D A I J M Y C H R A I N A T A V I Altered Contracts | Procurements ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Emergency Plans | ICS ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Funding | Resource Allocation ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Intrastate Coordination ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Isolation | Quarantine ■ ■ ■ ■ ■ ■ ■ Licensure Reciprocity ■ ■ ■ ■ ■ ■ ■ Price Controls re: Gouging ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Surveillance | Reporting ■ ■ ■ ■ Testing | Screening | ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Treatment Travel Restrictions ■ ■ ■ ■ ■ ■ ■ ■ Waivers | Suspensions ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ 20 Projected Emergency Declaration Expirations by Month (2020)

25 21 20

15 14

10 7 5 3 1 2 0

# of states whose emergency declarations are projected to S…expire per month, absent further intervention

21 States Rescinding COVID-19 Emergency Declarations

WA

MT ND VT ME MN OR NH ID WI SD NY 5/11 MA WY MI PA RI NE IA NV OH IL IN DE CA UT CO WV VA DC KS MO KY 4/2 NC TN AZ OK NM AR SC AL GA MS TX LA

FL

Emergency declaration rescinded + date (2020) AK – Alaska HI - Hawaii PR - (Puerto Rico) 22 VI - (Virgin Islands) Legal Triage

Legal Triage: efforts of legal actors & others Legal Triage during declared Government emergencies to build a favorable legal Laws environment by Actors prioritizing issues & From this . . solutions facilitating Partners legitimate. public health responses

23 Balancing Individual & Communal Interests

Privacy Religious Freedoms Surveillance Treatment Individual Communal Interests Interests Due Equal Isolation & Curfews & Process Protection Quarantine Closures

Emergency Preparedness and Response

24 Select Structural & Rights-based Constitutional Issues

Judicial Separation of Federalism Supremacy Preemption Powers Deference

Freedom of Right to Freedom of Freedom of Due Process Expression Assembly Religion Privacy

Cruel & Equal Right to Takings Right to Bear Unusual 25 Protection Travel Arms Punishment Current & Emerging Legal Issues

Emergency Powers - Testing/ Triage Screening/ Treatment/ Crisis Vaccination Standards of Care

Topics Surveillance Social & Reporting Distancing Measures

Privacy Liability

26 Screening & Testing

March 3: VP Pence: “Any American can be tested . . . subject to doctor’s orders.” March 21: Some health officials restrict coronavirus testing to HCWs & hospitalized persons, saying “the battle to contain the virus is lost [as we move] into a new phase

of the pandemic response.” Source: https://www.medpagetoday.com/infectiousdisease/covid19/85138 April 11: CMS issues guidance requiring insurers to cover diagnostic testing & related services with no patient cost-sharing. April 19: Antibody tests key to reopening country are in high demand, yet tests’ availability and inaccuracies raise alarms.

May 7: AZ Gov. Ducey withdraws access by university researchers to select health data for

Source: Adina Weisberg, J.D. Candidate, ASU Law 27 in-state surveillance,27 then reverses decision. COVID-19 Vaccination Allocation

Click on image to access

28 Face Mask Requirements

Multiple states & localities issue requirements based on CDC recommendations to wear face masks in public places.

Source: • Localities in 43 states and territories requirehttps://www.medpagetoday.com/infectiousdisease/covid19/85138 face masks to be worn by employees, customers, or others in public. • May 20: Poll shows that 64% of respondents said everyone should be required to weak a mask. • July 7: Freedom Foundation files lawsuit challenging the constitutionality of WA state mask mandate. On July 27, it sues Oregon re: its mask mandate. • July 10: Circuit court judge rejects FL state representative lawsuit challenging the constitutionality of Orange County’s mask requirement. 29 29 Clashes over Mask Mandates in Georgia Families First

July 15, 2020: Georgia Governor issues executive order suspending any local mandates for face coverings. July 16, 2020: Gov. Kemp files a lawsuit against the Atlanta City Council and Mayor Keisha Lance Bottoms for continuing to require face masks. July 21, 2020: Two Georgia superior court judges recuse themselves from the Governor’s lawsuit, citing ethical conflicts. July 27, 2020: Gov. Kemp withdraws his request for an emergency hearing and will continue to negotiate with Mayor Lance-Bottoms

30 while a new hearing date is set for the case. Contact Tracing

• Contact tracing - efforts typically led by public health agents to ascertain specific contacts of persons infected with COVID-19 and notify them of potential exposure and seek testing. • States are hiring thousands for contact tracing activities within health agencies • Apple & Google released Bluetooth technology on April 10 that sends automatic alerts to persons in range of COVID + persons, raising privacy concerns • New bill signed into law in Kansas on June 8 restricts contact tracing to voluntary participants, provides strong confidentiality

31 protections, and extensively limits liability. Data Sharing & Privacy

Click on images to access

For additional expert analyses and guidance, contact Denise Chrysler, JD, or Sallie Milam, JD, CIPP/US/G, in our

32 Network–MidStates Region Crisis Standards of Care Substantial change in usual healthcare operations and level of care due to a pervasive or catastrophic disaster.

33 33 Select States’ CSC Plans

Click on the date* of each state to view CSC plans (where available) WA 3/16 MT ND VT ME 2/24 MN OR NH ID 5/4 4/17 3/23 SD WI NY MI MA WY 3/27 PA RI 4/7 NE IA 4/27 NV Z OH 4/10 IL IN DE CA 4/2 UT CO 5/6 WV VA DC 6/5 KS 4/16 4/15 4/5 MO 3/18 4/2 2/28 4/20 KY 3/21 NC TN 6/10 AZ OK NM AR 4/1 4/7 SC AL GA MS 2/28 TX LA

FL 4/13 CSC plan

AK – Alaska *The date provided indicates when a state’s CSC HI - Hawaii PR - (Puerto Rico) 34 plan was published, not necessarily activated. VI - (Virgin Islands) CSC Legal Issues

Click on article image to access

• Allocation • Patient’s Rights • Reimbursement • Licensure • Scope of Practice • Civil Rights • Duty to Care • Uniformity • Liability 35 35 Emergency Liability Protections - Health Practitioners & Entities

Umbrella of Liability Coverage

Despite risks, many legal liability Good Samaritan Indemnification protections apply in Acts & Entity Liability State VPA routine events & Protection Mutual Aid State declared emergencies, EMAC Agreements EHPA

especially concerning Federal MOUs Joint PREP Act Commission health care volunteers, Standards/ Federal Policies & VPA workers, and entities. Federal Practices CARES Act 36 Social Distancing Measures

Control modes of transport- ation Shelter-in- Increase distance place/ among Lockdown workers

Dismiss Curfew schools

Restrict Evacuation public gatherings Isolation & quarantine

37 Quarantine & Isolation

Quarantine Isolation Separation from others of Separation from others of people people exposed to a contagious who are known to be infected, or condition prior to knowing if capable of infecting others, with a they may be ill or contagious contagious condition

See the National Conference of State Legislatures for a listing of state-based quarantine and 38 isolation statutes. Q & I Best Practices

Safe, hygienic premises Monitoring & care Basic necessities

Means of communication Least restrictive means Termination

3914 Closures & Cancellations

Schools & Places of Worship Employers Universities

40 Events40 Sports Festivals Assembly Limits

• On what authority? Government limits on • By who specifically? assembly and speech are constitutional provided • At what they are narrowly tailored governmental level? to a substantial • In what specific governmental interest & setting? allow alternative channels • For how long? for communication. Clark v. Community for Creative 41 41 Nonviolence, 468 U.S. 288 (1984) Curfews

Mar. 29: Curfew order extends existing Stay at Home Order for the entire Navajo Nation. All persons, subject to some exceptions, must stay home from 8:00 p.m. - 5:00 a.m., 7 days a week. May 5: Nearby Gallup, NM imposed strict confinement measures via use of “riot act” authorities allowed by NM Governor Michelle Lujan Grisham that ended on on May 10, 2020. 42 U.S. Foreign Travel Restrictions

Jan. 31: Trump Administration bans foreign national travel for those who have been in China w/in last 14 days and who pose a risk. Feb. 29: Administration bans foreign national travel for those who have been in Iran, as well as travel warnings re: Italy, Japan & South Korea. Mar. 11: President Trump institutes 30 day comprehensive travel ban for non-Americans arriving from EU, including U.K. & Ireland Mar. 19: U.S. closes border with Canada & Mexico (through 7/20) to persons travelling for non-essential purposes (e.g. tourism). Apr. 21: President Trump suspends limited immigration activities for 60 days initially, and extended to Dec. 31. June 22: President Trump temporarily suspends foreign work visas through the end of 2020. 43 U.S. Domestic Travel Restrictions

Mar. 26: “Governors Tell Outsiders From ‘Hot Zone’ to Stay Away as Virus Divides States” ❑ Florida Governor Ron DeSantis orders 14 day quarantine against anyone arriving from NY in prior 3 weeks ❑ Hawaii Governor David Ige recommends travelers postpone trips for 30 days and imposes 14 day quarantine on arrivals ❑ Alaska Governor Mike Dunleavy orders residents and others arriving in state to self-quarantine for 14 days ❑ June 24: NY, NJ & CT Governors set 14 day quarantine requirement for persons returning or 44 visiting from COVID “hotspot” states with > cases U.S. Department of Justice Objections

June 23: Federal DOJ challenges constitutionality of HI’s 14-day quarantine order

July 3: U.S. District Judge rules that Hawaii’s quarantine is reasonable in a public health crisis & constitutional, allowing the quarantine order to 45 continue to be implemented. State Shelter-In-Place or Stay Home Orders Click on the date of each state to view the order WA 3/24VT NH 3/16 3/26 ME MT ND 3/31 3/26 OR ID MN 3/23 NY MA 3/23 3/25 SD 3/25 WI 3/22 WY 3/24 MI RI 3/28 3/28 3/23 CT 3/20 PA NE IA 4/1 NJ 3/21 NV OH DE 3/22 IL IN 3/31 UT 3/23 MD CA CO 3/21 3/23 WV VA 3/30 3/19 3/25 MO 3/24 DC 3/25 KS KY 3/23 3/30 3/28 4/3 3/25 NC TN3/30 3/27 AZ OK NM AR SC 3/30 3/24 4/6 3/23 GA MS AL 4/1 4/3 4/1 TX LA 3/22 Note: data are based in 3/31 substantial part on NYT FL (March 24, 2020) 4/1

AK – Alaska 4/1 Shelter-in-Place or Stay Home Orders – 43 states HI – Hawaii 3/23 PR - (Puerto Rico) Shelter-in-Place or Stay Home Orders – 3 partial states VI - (U.S. Virgin Islands) 46 Justifying Social Distancing

Assess Epi Assure Mobilization Acquire PPE

47 Find Treatments47 Develop Vaccines Save Lives Assessing the Consequences

Unemployment Business Failures Government Bailouts

48 Active48 Protests Mental Health Lost Lives Re-Opening America

April 16: The White House releases guidelines for “Opening Up America Again,” a 3 phased approach for state/local officials to consider. States must first meet regional gating criteria: • Downward trajectory of COVID illnesses reported w/in 14 days • Downward trajectory of cases or positive tests w/in 14 days • Hospitals must treat all patients outside CSC or implementation of a “robust reporting system” April 21: U.S. Attorney General William Barr instructs U.S. Attorneys to litigate against states failing to comply with national re-opening

49 strategies Re-opening Phases

Phase 1 Phase 2 Phase 3

• Vulnerable • Resume • Vulnerable individuals shelter-in-place non- individuals • Practice social essential may resume distancing and public avoid socializing travel in groups >10 interactions, • Employers • Schools, with social should gyms, and distancing encourage telework and bars may • Large most businesses re-open venues may remain closed reopen 50 Re-opening Efforts

Essential Business Light Retail Salons & Barbers

51 Bars51 Gyms Restaurants School Re-openings

July 8: President Trump threatens to cut funding for schools that do not reopen and criticizes CDC’s school safety guidelines as tough & expensive. July 17: CA Gov. issues an executive order forbidding schools from reopening in counties on California’s COVID-19 watch list until certain criteria are met. On July 21, the Center for American Liberty, representing parents, filed a lawsuit challenging the order’s constitutionality. July 23: CDC emphasizes the importance of school re-opening, citing evidence indicating school-aged children are at low risk for COVID-19 and are unlikely to “be major drivers” in spreading the virus.

Multiple legal issues extending from school reopening include: lawful authority to open (or not), liability claims (related to potential outbreaks), liability protections, discrimination, demands for tuition refunds, rights to education, and teacher union disputes. 52 Select Changes to School Vaccination Policies Due to COVID-19 • Nevada is granting immunization extensions for the 2020-21 school year because the postponement of non-essential medical services halted necessary enrollment vaccinations. Permitting Students may enroll irrespective of immunization status. Delays • A Tennessee school principal stated that a grace period on the school’s immunization schedule may be given if parents demonstrate they attempted to catch their kids up on shots.

• Ohio schools are requiring vaccination for the 2020-21 Maintaining school year (like many school systems nationally). Immunization • schools require that records be up-to-date on Requirements required vaccines for the 2020-21 school year with exemptions for religious or medical reasons. • Cleveland County (NC) schools are partnering with the county’s public health center to provide immunizations via Drive-thru drive-thrus. Immunization • Sweetwater County (WY) public health authorities are Clinics offering a drive-thru immunization clinic for incoming 7th graders required to get Tdap and Meningococcal vaccines. 53 53 Re-opening Universities

• Epidemiologists are concerned that factors unique to residential universities (e.g., shared living spaces, large gatherings) heighten risks for significant outbreaks • CDC & American Association of University Professors released guidance on reopening campuses emphasizing safety for faculty, staff & students • In May, 14 university presidents met with VP Pence and Sec’y of Educ. DeVos to seek liability protections as campuses reopen, citing concerns of lawsuits over outbreaks and tuition fees • In July, Sec’y of Educ. DeVos and President Trump promulgate

54 physical re-opening of schools for the Fall 2020 semester Re-opening Legal Controversies

Federal v. State State v. Local

Employee v. Employer

55 State55 v. Tribal Public v. Private Sector Federal v. State

May 19: A high ranking DOJ official sent a letter to CA Governor Gavin Newsom, threatening to intervene if CA does not alter its stay home order and re-opening policy. • While restaurants and malls can open in phase 2 re-opening strategies, religious entities cannot do so until phase 3. • DOJ characterizes this deferential treatment as unconstitutional pursuant to Lukumi v. City of Hialeah. May 29: U.S. Supreme Court Chief Justice John Roberts opined that the limitations put in place by Governor Newsom’s order are constitutionally-sound under the First Amendment and pursuant to judicial discretion of executive acts. 56 56 State v. Local

May 12: Pennsylvania Governor threatens multiple counties attempting to open businesses in contravention of existing state- level stay-at-home orders with denial of discretionary federal funds and various sanctions for offending businesses including loss of license and payment of unemployment benefits for employees unwilling to work for safety reasons.

May 13: Texas Attorney General issues letter to local officials in Dallas, Austin, and other municipalities to cease enforcement of multiple social distancing and preventive measures related to religious institutions, wearing of masks, and contact tracing efforts under threat 57 of litigation. Wisconsin S. Ct Rejects Stay Home Order

May 13: In Wisconsin Legislature v. Palm, the WI Supreme Court determined that Department of Health Secretary Andrea Palm’s stay home “order” issued pursuant to Governor Evers’ emergency declaration was actually an unconstitutionally crafted “rule,” and consequentially nullified the order.

58 State v. Tribal Reopening Communities • From May 1-10, NM Gov. Michelle Lujan Grisham invoked emergency powers to lock down the City of Gallup to stop tribal members (largely from Navajo Nation) from spreading COVID to state residents. • After a partial reopening July 14th, the St. Regis Mohawk Tribe (NY) renewed emergency protocols on July 24th following eight new confirmed cases as the region around it reopens. Restricting Travel • On May 8, SD Gov. Kristi Noem ordered checkpoints on state highways to be removed and requested federal assistance when tribes refused. Following threats from the Bureau of Indian Affairs to withdraw law enforcement funding if checkpoints are not removed, the Cheyenne River Sioux Tribe filed a lawsuit, seeking to stop the federal government from withdrawing funding. Reopening Casinos • CT Gov. recognized the Mashantucket Pequot and Mohegan Tribes’ sovereignty over the decision to reopen on June 1 but warned of impacts of reopening casinos on state and tribal partnerships, 59 as well59 as public health. The casinos have yet to report any infections. Public v. Private Litigation

Friends of Danny DeVito v. Wolf – On April 13, PA’s Supreme Court ruled that the temporary closure of non-essential businesses within the scope of the Governor’s emergency order did not constitute a taking. Tesla Inc. v. Alameda County - On May 9, Tesla sued Alameda County alleging it violated principles of due process & equal protection by disallowing Tesla to operate its manufacturing plant. The case was dismissed after Tesla was allowed to do basic operations. Open Our Oregon v. - On May 5, 9 businesses sued Gov. Brown contending that closing their businesses violates due process, equal protection, and a taking. A U.S. district court judge denied the businesses’ motion for

60 60 emergency injunction. Employee Legal Claims

• Workers compensation - often exclusive remedy for workplace injuries • Wrongful termination - e.g., employee faces adverse action for seeking protections • Discrimination - e.g., persons are discriminated based on age, parenthood, health, sex, or other protected characteristics • Nuisance - e.g., employer workplace hazards pose public or private nuisance. Recent judgement in Oakland against McDonald’s® requires new employee safety protocols to sustain reopening. • Negligence & intentional torts - e.g., employer fails to implement CDC/OSHA safety measures 61 Select Acts of Intimidation of Public Health Officials

• Since April, over 2 dozen state & local health leaders have “resigned, retired, or been fired” in multiple states. • In April & May, the Tri-County (CO) Health Department was vandalized on 3 different occasions (i.e., broken windows, spray painting vulgarities, harassing notes). • As of May 9, the residence of Ohio’s state health director was picketed. On June 11, armed protestors surrounded the property, lending to her resignation that same day. • As of June 8, the health officer of Orange County (CA) resigned after public meeting and social media threats. • As of June 22, L.A. County’s public health director received threats of being shot. 62 Thank You Contributors!

Leila Barraza, Sarah Wetter, Emily Carey, JD, MPH JD, MPH ASU JD Candidate

Elyse Pendergrass, Hanna Reinke, Claudia Reeves, 63 ASU JD Candidate ASU JD Candidate ASU JD Candidate For More Information

Federal Public Liability of Health Social Distancing Latest Resources Health Care Workers Powers Emergencies and Entities

Mental and Hospital Emergency State and Local Behavioral Emergency Legal Declarations and Preparedness Health Preparedness Powers Preparedness

Emerging Public Health Model Threats Crisis Standards Emergency Emergency Laws Preparedness of Care Ethics and Response Access these and other Network materials here • Ask the Network re: questions/comments relating to this information or other legal preparedness & response efforts

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