How A Novel Virus Is Raising Novel Issues For Attorneys

By Natalie Rodriguez
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Law360 (March 17, 2020, 5:48 PM EDT) -- Along with quarantines and mass office closures, the spreading novel coronavirus has left many attorneys and their clients in uncharted legal territory.

The spread of COVID-19, the disease created by the novel coronavirus, has created never-before-seen situations that raise new constitutional and legal questions. Here, Law360 speaks with three lawyers on some of the unique issues cropping up amid the growing pandemic.

How should labs navigate the unusual FDA process for test kits?

Partner, Ropes & Gray LLP, Washington, D.C.

Shortly after the U.S. Food and Drug Administration issued a new guidance document on Feb. 29 allowing certain certified labs to develop their own tests for the virus, Levine was tapped by a client to help guide it through the process.

The unique legal challenge stems from the fact that the agency gave the green light to labs to use tests that have been validated in-house before agency approval — something the FDA has never done before.

"It was a bit of a surprise because it's not the way it's been handled in past emergencies," said Levine.

Only a few years back, when the Zika virus was spreading, the FDA sent warning letters to labs it believed had started using their tests before getting approval.

Levine noted there was also no preview or public discussion of the new process, essentially putting the cart before the horse of FDA approval.

While the agency has so far been very responsive to questions, Levine said he is essentially steering his client through uncharted territory.

"Because the labs themselves haven't done this before, it's trying to anticipate what issues might arise," he said.

How can jails protect prisoners' rights amidst the pandemic?

Member, Frost Brown Todd LLC, Indianapolis

Over the last two weeks, Wheeler has been liaising with the Centers for Disease Control and the U.S. Department of Homeland Security on behalf of his client, the National Sheriffs' Association. He is at the forefront of working toward guidelines for how jails should handle the COVID-19 pandemic — both from a health safety perspective and a legal rights view.

Though declarations of national and local states of emergency give rather broad powers to the government and authorities, those powers haven't necessarily been tested in the way and scale that the novel coronavirus pandemic could.

"We haven't really dealt with the constitutional issues of how broad is too broad when you're in the middle of a pandemic," said Wheeler, who added that the rapidly evolving situation could spur new case law and legal guidance in this area.

Across the world, several hard-hit countries have struggled with the disease spreading in their jails and prisons. Iran and China both released thousands of prisoners at the height of the outbreak, while Italy tried to lock prisons down only to see riots and escapes.

U.S. jails, unlike prisons that hold convicted inmates for their sentences, often see a more transient population of people who are there for a day or two before arraignment, Wheeler noted. That transient nature puts prisoners, law enforcement and staff at higher risk for spreading the disease.

"[Prisoners] clearly have constitutional rights with respect to medical treatment. From a legal standpoint, those pieces are pretty clear. The issue is when we get to a point when it overwhelms the system," said Wheeler.

Along with providing appropriate medical care as jails — some on shoestring budgets — face staff having to quarantine or isolate themselves, there are also issues arising with courts closing their doors in the midst of the pandemic. The sheriffs' association has generally been advocating that courts continue arraignments and pretrial hearings via video to avoid having to keep prisoners for potentially indefinite periods.

There is a conflict of interest between emergency powers to stop a pandemic and keeping people in jail too long, said Wheeler.

He added that as he works overtime to help the National Sheriffs' Association prepare for the next few weeks, the one silver lining is that he and his client are becoming more prepared for other potential crises down the road.

"It's forcing us to take a good, hard look as we become more at risk for a global pandemic worse than this," said Wheeler.

Can a company take an employee's temperature?

Principal, Polsinelli PC, Los Angeles

Over the last two weeks, labor and employment attorney Ryan's phone has been inundated with calls from employers trying to navigate health safety issues. A top question: whether they can require employees to have their temperature taken to screen for potential COVID-19.

Ryan's general response has been to discourage the practice, which can risk violating rights afforded through the Americans with Disabilities Act.

"It's often likely to do more harm than good," said Ryan, noting that it could create "unwarranted panic and fear among coworkers."

There could be some protection for employers after the declaration of a national emergency, but Ryan said it might be more effective to simply encourage sick employees to stay home.

Other questions Ryan has been fielding include whether employers can prohibit workers from traveling on their personal time.

"I think for very large employers, there has been a race to implement safety measures," said Ryan. "They don't want to be the first one in the news for having an outbreak among employees."

--Editing by Philip Shea and Alanna Weissman.

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