Public Health Law News

COVID-19 Law Lab
The COVID-19 Law Lab initiative launched a new interactive website that collects and shares legal documents from more than 190 countries to aid policymakers in establishing strong legal frameworks to manage the pandemic. The project offers free toolkits and a database of law and policy documents. Created in partnership between the United Nations Development Programme (UNDP), World Health Organization (WHO), Joint United Nations Programme on HIV/AIDS (UNAIDS), and the O’Neill Institute for National and Global Health Law at Georgetown University. Explore the lab.

Federal Disaster Assistance for Hurricanes During the COVID-19 Pandemic
Congressional Research Service released this comprehensive report anticipating 2020 hurricane season FAQs about aid, funding, and legal response. Read the report.

COVID-19 Response & Recovery Series
The ChangeLab Solutions COVID-19 Response & Recovery series curates resources and policy solutions for local governments with a focus on equity in the pandemic. Sample topics include legal issues around isolation and quarantine, emergency housing protections, food worker protections, and misuse of pre-emption. Learn more about the series.

Emergency Legal Preparedness Primer
In this snapshot, the Network for Public Health Law outlines public health emergency response policies from the COVID-19 pandemic. Along with an interactive national map, the document illustrates international and national legal response and preparedness efforts, including emergency declarations. Read the primer[PDF – 5.20MB].

Small Grants Program Is Accepting Applications
The Center for Sharing Public Health Services is accepting applications for its 2020 small grants program. Applications must be submitted by 6:00 pm (EDT) on September 11. Here’s how to apply. This latest round of small grants will support work on cross-jurisdictional sharing arrangements designed to advance health equity by addressing:

• The public health response to COVID-19
• Social determinants of health (e.g., affordable housing, jobs with fair pay, quality education, affordable healthy food, and public safety)
• Structural racism
• Other related issues

2020 Public Health Law Virtual Summit: COVID-19 Response and Recovery
The COVID-19 pandemic is exposing structural failures and health inequities that compound the virus’s impact. State and local jurisdictions are navigating myriad emergency response issues to mitigate infection rates and loss of life. This free, two-day virtual summit on September 16–17 will cover law and policy issues surfaced by the pandemic and paths forward to more effective and equitable response and recovery efforts. Register today.

Podcast: Public Health Law and the Pandemic 
The National Association of County and City Health Officials (NACCHO) launched a new podcast where experts discuss current and developing COVID-19 emergency policies and their effects at national, state, and local levels. The first episode features Jerry Giuliano, Director of the Office of Public Health Legal Affairs for Nassau County Department of Health in New York. Listen now.

Journal Special Issue: Using Public Health Policy to Reduce the Morbidity, Mortality, and Incidence of HIV, Viral Hepatitis, Sexually Transmitted Diseases, and Tuberculosis
CDC has partnered with Public Health Reports to produce a special issue featuring policy research and commentaries addressing HIV, viral hepatitis, sexually transmitted diseases, and tuberculosis. It includes a commentary from the Surgeon General on the importance of state and local policies enabling syringe services programs (SSPs) and an article examining the increase from 2014 to 2019 in the number of states that explicitly authorize SSPs. It also has articles on laws to reduce HIV testing barriers, removal of cost barriers for hepatitis C medication, policy approaches in correctional settings, and policy changes to allow electronic directly observed therapy to reduce TB transmission. View the issue.

Hiring: General Counsel (New York City)
The New York City Department of Health and Mental Hygiene is seeking a General Counsel to act as chief legal officer for the legal department, report directly to the Commissioner of Health, and advise legal obligation and strategy initiatives for the department. Deadline for applications is December 31, 2020. Search for Job ID #432735 and learn more about the position.

E-Course: Working with Tribal Nations
The National Indian Health Board has launched a free, interactive e-course to train non-native federal and state government staff on how to effectively and respectfully engage tribal nations’ public health systems. Participants will gain foundational knowledge of federal Indian law and policy. The training includes a history of American Indian and Alaska Native relations with Europeans, colonial impact on tribal health and well-being, and best practices for engaging tribal governments. Get more information.

Public Health Training for Tribal Leaders and Tribal Advisory Committee (TAC) Members
This free, capacity-building course was designed to strengthen tribal public health infrastructure, improve the delivery of essential services, and support a competent, current, and connected tribal public health system. This course may also be useful for those who work with tribal leaders or who support consultation. It was created with input from Area Indian Health Boards, CDC staff, and current and former tribal leaders and TAC members. Take the training.

Equity Assessment Framework for Public Health Law and Policies
The Equity Assessment Framework tool is for assessing equity in new and existing laws or policies. It was designed to help users identify issues in the drafting, design, or implementation of a law or policy that could have a disproportionate impact on different population groups. The framework is intended to guide discussion around equity in both process and outcomes, and help identify areas for improvement. View and download the tool.

National: Families file first wave of COVID-19 lawsuits against companies over worker deaths
Wall Street Journal (07/30/2020) Janet Adamy

Story Highlights
Safeway Inc., Walmart Inc., and Tyson Foods Inc. are among the corporations being sued for “gross negligence or wrongful death” of their employees during the COVID-19 pandemic. Sixty-nine employment and labor lawsuits have been filed for exposure or potential exposure to the novel coronavirus. Many lawsuits have been filed by family members of employees who have since died of COVID-19. While liability lawsuits are often settled through existing employee compensation systems, plaintiffs claim the issuance of state and federal COVID-19 guidelines present new legal duties that employers failed to meet.

Responses from industry defendants are varied; Safeway has denied claims, citing an absence of safety guidelines from CDC and the state of California at the time of exposures. Walmart claims there are insufficient grounds to determine where and when employees contracted the virus. Tyson has denied allegations that they neglected to shut down a pork processing plant in Iowa and has moved the case to federal court.

[Editor’s note: While it is unclear how these cases will be decided in their respective judicial forums, each of these cases could also be pre-empted by legislative action.]

Iowa: Iowa Republicans push bill to limit coronavirus liability
Associated Press (06/09/2020) David Pitt

Story Highlights
A fast-tracked bill that would provide businesses with immunity against coronavirus lawsuits was approved in early June by the Iowa House with solely Republican support. The bill would offer immunity to businesses such as nursing homes and meatpacking plants. Under the bill, an individual must have been hospitalized or died to sue a business, and the business must have intended to cause harm. Businesses that have complied with legislation and public health guidance cannot be sued for civil damages. Groups representing the interests of hospitals and doctors, restaurants, grocery stores, and other businesses support the bill.

Retroactive to January 1, 2020, the bill is opposed by labor unions, the Iowa State Bar Association, and the American Civil Liberties Union of Iowa. Opponents claim that the bill would allow businesses to disregard workplace safety requirements under the guise of protecting businesses from employee lawsuits as they reopen. The Iowa Association for Justice expressed concern that the bill will cause more people in nursing homes to die. Half of Iowa’s COVID-19 deaths have occurred among nursing home residents.

According to Democratic state Rep. Chris Hall, “Essentially, this means that companies have been given the privilege of legal protection without the responsibility to maintain a safe workplace to prevent further spread of a deadly disease in our state.”

The bill now goes to the state’s Republican-controlled Senate. A previous version of the bill was passed by the state Senate in February, so if the new immunity language receives a majority vote, the decision will be up to Republican Governor Kim Reynolds.

Alabama: How Alabama lowered its infant mortality rate
Milibank Memorial Fund (07/06/2020) Roxanne Bangalan

Alaska: State clarifies Alaska’s new COVID-19 testing plan for nonresident air travel
Anchorage Daily News (08/05/2020) Annie Berman and Morgan Krakow

Louisiana: Louisiana mask mandate, virus rules challenged in court
Associated Press (08/05/2020) Melinda Deslatte

Michigan: Gov. Whitmer declares racism a public health crisis in Michigan
Detroit Free Press (08/05/2020) Paul Egan
[Editor’s note: Read the Executive Directive[PDF – 206KB].]

Missouri: Missouri voters approve Medicaid expansion despite resistance from Republican leaders
NPR (08/05/2020) Alex Smith

Utah: State opens rental aid program to Utahns receiving jobless benefits
The Salt Lake Tribune (08/06/2020) Connor Sanders

Virginia: Virginia first to roll out pandemic app from Apple, Google
Associated Press (08/05/2020) Matt O’Brien and Sarah Rankin

Coronavirus: European countries tighten controls amid COVID-19 second wave fears
Euro News (07/28/2020)

Italy: In Italy, a migrants’ advocate fights for the ‘invisibles’
NPR (08/05/2020) Sylvia Poggioli

Poland: Amid growing hostility, some in Poland’s LGBTQ community make a difficult choice: leave
Los Angeles Times (08/06/2020)
[Editor’s note: View CDC resources about LGBT health and disparities.]

Thailand: Thai Cabinet approves draft law expanding access to cannabis
Associated Press (08/04/2020)

Title: Associate Professor, Mel and Enid Zuckerman College of Public Health at University of Arizona; Director, Arizona Area Health Education Centers

Education: JD, Sandra Day O’Connor College of Law, Arizona State University; MPH, Mel and Enid Zuckerman College of Public Health, University of Arizona; BA, Biological Sciences, University of Southern California

Public Health Law News (PHLN): What sparked your interest in public health law?

Barraza: During my undergraduate studies in biological sciences, I became interested in community health and public health. I was accepted into the MPH program at University of Arizona’s Mel and Enid Zuckerman College of Public Health. During my MPH coursework, I completed a policy course in which we tracked legislation and examined the implications of the legislative process on community health. I was fascinated with the widespread impacts that laws and policies have on the public’s health and safety.

PHLN: Please describe your career path.

Barraza: After completing my masters, I worked for the Arizona Rural Health Office (now Center for Rural Health), where I provided assistance to rural and tribal hospitals and clinics. During this time, I applied to law school because I felt a law degree was an important next step for my career based on my interests in public health law. Following law school, I did not have a defined path for my career but was open to various possibilities. I was grateful to be selected for a position as a judicial clerk, which provided me a chance to greatly improve my legal research and writing skills. I was then given an extraordinary opportunity to become a fellow in the Public Health Law and Policy Program (now Center for Public Health Law and Policy) at the Sandra Day O’Connor College of Law, Arizona State University, and a deputy director of the Western Region of the Network for Public Health Law, under the guidance and mentorship of national public health law expert James G. Hodge, Jr. Through my role there, I provided legal technical assistance on public health issues to individuals and organizations. Two years later, I was hired as an assistant professor at Zuckerman College of Public Health to teach public health law. I did not go to law school with a plan to work in academia, but I am so thankful for the way my career path has led me to my current position.

PHLN: What do you do in your current position?

Barraza: I serve as an associate professor at the Zuckerman College of Public Health at the University of Arizona. My research interests focus on the impact of laws and policies on public health, and I teach a public health law and ethics course to public health and law graduate students. I also serve as a senior consultant for the Network for Public Health Law—Western Region office. The Network for Public Health Law has recently provided numerous webinars, issue briefs, and requests related to legal responses to the COVID-19 pandemic. Additionally, I serve as the director of the Arizona Area Health Education Centers (AHEC) Program, where I focus efforts on overseeing programs to improve the supply and diversity of healthcare professionals serving in rural and underserved areas of the state.

PHLN: How did you come to work on the Healthy People 2020 Law and Policy breastfeeding initiative?

Barraza: Through my work with the Network for Public Health Law, I was connected with Angie McGowan, JD, MPH, who was leading the efforts to compile a team of authors for the Healthy People 2020 Law and Health Policy Project report focused on supporting breastfeeding. I was fortunate to be chosen alongside two amazing co-authors: Cheryl Lebedevitch, BA, Senior Workplace Program Manager and Policy Analyst, United States Breastfeeding Committee (USBC); and Alison Stuebe, MD, MSc, Professor of Obstetrics and Gynecology, University of North Carolina School of Medicine. We also had additional experts in the report working group and the federal Healthy People Maternal, Infant, and Child Health workgroup, which provided us with wonderful feedback.

PHLN: How is breastfeeding a public health issue?

Barraza: Breastmilk is uniquely suited to meet the nutritional needs of infants. Breastfeeding can confer numerous health benefits on both infants and mothers. For infants, not being breastfed has been associated with higher rates of ear and gastrointestinal infections, hospitalizations for lower respiratory tract infections, childhood obesity, and inflammatory bowel disease. For mothers, not breastfeeding has been associated with higher rates of ovarian and breast cancers, diabetes, myocardial infarction, and diabetes.

PHLN: How is law related to breastfeeding and public health outcomes?

Barraza: Approximately 4 in 5 women in the United States begin breastfeeding immediately after birth, but many face numerous barriers that prevent them from continuing breastfeeding. While the American Academy of Pediatrics and other major US medical organizations recommend that infants be exclusively breastfed for the first six months, only 29.5% of non-Hispanic White infants, 17.2% of non-Hispanic Black infants, and 19.6% of non-Hispanic American Indian or Alaska Native infants were exclusively breastfed in 2015. Legal and policy interventions focused on assisting more mothers to breastfeed are important to overcome some of the barriers women face in reaching their feeding goals.

PHLN: From your research, which laws or policies seem to best support breastfeeding practices?

Barraza: We examined numerous laws and policies that support breastfeeding practices in drafting the report. Examples in employment include laws providing paid family leave or break time for nursing mothers in the workplace, and laws that protect mothers breastfeeding in public places. All 50 states, DC, the Virgin Islands, and Puerto Rico have laws that permit women to breastfeed in public locations, and in private locations as well in many states. Thirty-one states, plus DC, the Virgin Islands, and Puerto Rico, exempt breastfeeding from public indecency laws. It is important for a breastfeeding mother to feel comfortable feeding her infant wherever she may be.

PHLN: Why are many breastfeeding laws and polices not effectively enforced?

Barraza: Initiation rates for breastfeeding have been shown to be higher in states with workplace breastfeeding laws that include an enforcement provision. In terms of laws protecting breastfeeding mothers in public places, many of these laws lack any enforcement provisions. As of 2016, only 10 states, plus DC and Puerto Rico, allowed breastfeeding mothers to bring legal actions against those who interfere with public breastfeeding rights. A few states allow women whose rights to breastfeed in public have been violated to file claims with the state’s human rights commission. Other enforcement mechanisms may include fines against a company or organization for violating the state’s protections for breastfeeding mothers in public places. However, these enforcement provisions are not universal, and comprehensive enforcement is needed to ensure adequate protections.

PHLN: How can these policies be expanded to create better outcomes for breastfeeding mothers and their children?

Barraza: The report[PDF – 1.81MB] details numerous approaches to help create better outcomes and accelerate the process to reaching national breastfeeding targets. To list a few: promoting coverage of lactation-support providers and timely access to the appropriate and necessary breastfeeding equipment and supplies for each person; considering whether laws or policies can be strengthened to help ensure that breastfeeding mothers are protected from being fired or discriminated against in the workplace via pregnancy accommodation/nondiscrimination legislation with explicit inclusion of lactation in the statutory language; and increasing access to paid, job-protected family and medical leave that is affordable and cost-effective for workers, employers, and the government.

In addition, the report includes a breastfeeding accommodations graphic that details opportunities to accommodate breastfeeding in hospitals and healthcare settings, and in the home, workplace, child care, and community.

PHLN: What other projects are you working on?

Barraza: I am examining the impacts of COVID-19 on vaccination policies for the 2020–2021 school year. Evidence has shown that the pandemic is causing a decline in vaccination rates for recommended vaccines among US children. It is important that students maintain adequate vaccination status to reduce the risk of vaccine-preventable outbreaks in schools.

PHLN: What career advice do you have for young public health and public health law practitioners?

Barraza: At no other time in recent history have we seen the critical role of public health practitioners to protect the health of our communities. I would advise young public health and public health law practitioners to not become discouraged during these challenging times but to continue to follow their passion in public health and remember what they are doing is meaningful and impactful. I would also recommend finding a key mentor to help guide them on their career path and be open to new opportunities and experiences.

Federal: A federal judge in New York denied an imprisoned man’s motion for a reduction of his term of imprisonment “in light of the COVID-19 pandemic and the health problems currently being experienced by his wife and child.” Keenan Watts was 12 months in on a 24-month sentence for serious crimes revolving around gang involvement when he requested to be released early to care for his child suffering from kidney cancer and his asthmatic wife, and to reduce his risk of contracting COVID-19 in the detention facility because of complications resulting from his prediabetic status. The court denied the motion because Watts’ 24-month sentence was already dramatically lower than the typical sentence for crimes of such a serious nature, and lowering it would discount its deterrent effect. Additionally, the court reasoned that the detention facility was taking adequate measures to prevent the spread of COVID-19, and that Watts would be able to receive high-quality medical care at the facility if he did contract it and experienced complications. The court stated that while Watts’ family situation is “unfortunate,” it is not compelling enough to warrant early release.

United States v. Watts
United States District Court, S.D. New York
Case No. 17 CR 505-18 (VB)
July 20, 2020
Honorable Vincent L. Briccetti

Federal: A federal judge in Michigan granted a petition for the compassionate release of 57-year-old Gary Jackson due to the COVID-19 pandemic and his chronic health conditions of obesity, diabetes, heart disease, and a breathing disorder. To justify altering a criminal sentence in the form of a compassionate release, the court had to find that extraordinary and compelling circumstances existed. The government argued that Jackson’s health conditions do not satisfy the “extraordinary and compelling reason” requirement, but viewing the conditions in light of the COVID-19 pandemic, the court disagreed. The court considered CDC and WHO guidance on who is most at risk for serious complications from COVID-19, and found that the circumstances of imprisonment during a pandemic, and Jackson’s age, diabetes, and heart disease conditions did in fact qualify as an extraordinary and compelling reason to grant compassionate release.

United States v. Jackson
United States District Court, E.D. Michigan, Southern Division
Case No. 15-20507
July 27, 2020
Honorable Denise Page Hood

Federal: In a 5-4 decision, the Supreme Court ruled that only the federal government has jurisdiction to prosecute a member of an Indian tribe for crimes that took place on reservation land, and that once a reservation is established, it may only be disestablished by an explicit act of Congress. An enrolled member of the Seminole Nation of Oklahoma allegedly committed several crimes on the Creek Reservation and was prosecuted and convicted in state court. He appealed, claiming that Oklahoma did not have jurisdiction over these crimes according to the Major Crimes Act, and the Supreme Court agreed. The state of Oklahoma argued that the Creek Reservation land, which encompasses most of the city of Tulsa, should no longer be considered a “reservation” due to the historical use and demographics of the area. The Supreme Court disagreed, stating that federal statutory and treaty language is clear so use of the area is irrelevant, and only an unambiguous act of Congress may disestablish an Indian reservation.

McGirt v. Oklahoma[PDF – 406KB]
Supreme Court of the United States
140 S.Ct. 2452
July 9, 2020
Justice Neil Gorsuch

Federal: An FDA regulation requiring larger warning labels on cigar and pipe tobacco products (the Deeming Rule) violated federal law because in promulgation of the regulation, the FDA failed to consider whether it would actually decrease rates of smoking. While the federal Food, Drug, and Cosmetic Act (FDCA) grants the FDA significant discretion to make rules and regulations for tobacco products that are “appropriate for the protection of the public health,” the FDA must also consider whether the rules and regulations will actually reduce rates of smoking. In this case, the FDA acknowledged the lack of evidence that new warning label requirements in the Deeming Rule would actually reduce smoking rates, concluding only that they would “help consumers better understand and appreciate the risks and characteristics of tobacco use.” The D.C. Circuit Court found that his consideration was inadequate to meet the requirements of the FDCA, the Tobacco Control Act, and the Administrative Procedure Act.

Cigar Association of America v. United States Food and Drug Administration
United States Court of Appeals, District of Columbia Circuit
964 F.3d 56
July 7, 2020
Honorable Gregory G. Kastas

Question: As of this month (July), which three states have new distracted driving laws in effect?

Winning Answer: Indiana, Idaho, and South Dakota

Winner: Debra A. Young

“COVID-19 has changed our world. It has brought people, communities, and nations together—and driven them apart.”—Tedros Adhanom Ghebreyesus, WHO Director-General

[Editor’s note: This quote is from the above article European countries tighten controls amid COVID-19 second wave fears, Euro News (07/28/2020)]