by Sara Romine
DAYL’s CLE Committee kicked off 2015 with a panel discussion of the legal issues arising in public health emergencies. Dallas County Judge Clay Jenkins, who spearheaded Dallas County’s response to Ebola in 2014, Cheryl Camin Murray, a healthcare law partner at Winstead, and Steve Fox, an employment and business litigation partner with Polsinelli, shared their insights into the different legal issues that may arise during a public health emergency. A few of the takeaways are outlined below:
1. The Ebola “crisis” could have happened anywhere. The world learned from Dallas’ experience as it unexpectedly confronted the Ebola virus and had no plan in place to respond. We learned a lot about public health disaster preparedness from our experience.
2. Governor Perry, Judge Jenkins, and federal and state officials are working to rewrite laws relating to quarantine orders. The proposals will seek to balance a number of competing public policy considerations: the need for the government to take swift action to protect the public, the rights and civil liberties of individuals, and the desire to promote forthcoming disclosures of medical information and risks.
3. Employers need to be prepared to respond to public health emergencies. Employers may be required to establish safety protocols and train their employees to protect against the spread of diseases. But employers also need to ensure compliance with federal and state anti-discrimination and harassment laws and cannot target applicants or employees based on their race, national origin, genetic information, or an actual or perceived disability. For example, refusing to hire applicants from Africa because of a perceived risk of contracting Ebola may be discriminatory under federal and state law.
4. HIPAA and HITECH require covered entities and their business associates to protect the privacy and security of healthcare information. As a result, hospitals, which are covered entities under HIPAA, cannot freely share information about a patient’s medical condition with the media, even during a public health emergency. However, there may be circumstances under which criminal and civil enforcement of HIPAA or HITECH may be suspended during a state of emergency if the disclosure is made for the purpose of assisting in the resolution of a public health emergency and is the minimum necessary disclosure. Many states also have laws regulating the disclosure of medical records and protected health information.
5. Even in the midst of a public health emergency, it is important to keep perspective. The response to a crisis has to consider more than just the bottom line. Act humanely and in the best interest of those around you.