Okay, we're down to our last speaker. Thanks to all of you who have attended. Dr. Canton, originally from Missouri, he earned his DO degree from Kansas City University of Health Sciences on an Army scholarship. In 1988, he completed a family practice residency at Southern Illinois University. In 1999, he concluded both a master's of public health and a fellowship in occupational and environmental medicine from the University of Washington in Seattle. He added a JD degree to his CV in 2004 after graduating from Concord University School of Law in L.A. and passing the bar. In 1990, he was a flight surgeon and part of the first Army medical unit deployed to Saudi Arabia as part of Desert Storm. For nearly three years, he was chief medical officer for the National Disaster Medical System in Washington, D.C. and having retired from uniformed federal service, he served as vice president for medical affairs at Emmanuel Medical Center in Turlock, California, and director of medical education. He's also going to add what he's doing right now, and please welcome Dr. Canton. Thank you. Yeah, I'm currently, when I did this, put this together, I was interim health officer. I'm now the official health officer for Butte County. California has 52 counties, and the way the public health structure is set up, each county has a health officer that's appointed by the board of supervisors. So we'll get into a little bit of that. Dr. Berkowitz just pointed out to me, I've got a misspelling on the slide, it should be D-O-M-P-H-J-D, not P-H-J-D, and it reminds me of a story. You know, I've done a lot of speaking, as you guys know that have been here, you've seen me multiple times, and you learn when you're doing speaking that you open with a story or a joke or something. And so I told a joke, and people kind of chuckled, my wife is here today, and I said, oh, that joke went over pretty well, and she said, no, you had a misspelling on the slide. So I tried to have the slides checked and double checked, but I missed this one. The next time I got the presentation, and I gave the presentation, I stepped away from the podium like this, and I was telling the story, and people started chuckling. And I said to her afterwards, oh, that joke went over, and she said, no, your fly was undone. So I've given up on jokes, and I try to stay behind the podium, but I'm still getting the misspelling. So thank you for that, Murray. Yeah, let's see. Okay, we're back up there. First, I've got no disclosures, no conflicts of interest. I'm not providing legal advice. This is for educational purposes only. I do have some slides in here that I've taken from the CDC, just because I think they're good references. So if you have the opportunity or situation where you need to do a presentation or a talk, or you're just interested, want to do some research on public health law, the CDC has a whole public health law module. So I've included those slides straight in there, but I'm not speaking on behalf of the CDC, the federal government, the state government, or even Butte County. So what we're going to cover, the focus primarily is going to be on legal issues around COVID. But in order to do that, I want to do a little bit of a refresher on public health law in general. And it'll be a little bit of a civics class, just to make sure that it's stuff we don't think about every day, so we're all got it in mind. So we'll review public health law, review the legal authorities, review police powers, balance of individual rights, public health laws, and emergencies, because that kind of really ties in. So we'll do a lot more talking about emergencies. A little bit on privacy and implications, I've got some slides in about HIPAA, they're really more for your reference. If you need them at a future date, we're not going to spend a whole lot of time on HIPAA. And then we'll come down and talk about some cases specifically related to COVID. So what is public health law? According to the IOM 1988, what we as a society do collectively to ensure the conditions for people to be healthy. So as we all know, we have population health, and then we have individual health. And I was talking, I think maybe to Stan or somebody yesterday, you know, some of that conflict we come into between talking about what's good for the population versus what's good for the individual. And so there may be things that are appropriate for the population, but when we bring it down to the individual, we may do something totally different that may be in line with that guidance or not. So what is public health law? It's the discipline by which the state or other actors use law to change the health of the population, including study of powers and duties of the state or other actors to assure the health of the population, limitations on the power of the state to constrain the autonomy, privacy, liberty, propriety, or other legally protected interests of individuals in order to assure the health of the population. And finally, limitations of the duties of the state to assure the health of the population. A lot of these have really come into play over the last two years, and we'll kind of get into that, and hopefully we can get into a little more of an open discussion. So back to our civics class from eighth grade, just a little bit of background information or refresher. So our basis for our society legal foundation in this country is the U.S. Constitution. And then down from that is treaties and statutes, which are enacted by the legislature. Under that is federal regulations, then under that state constitution, state statute, state regulations, then local authority, and then common law. So as we look at these, we talk about judge law, judges make law too, but not really. A law is an act that's passed by the legislature, signed by the governor or the president, depending on which organization we're talking to. So when we talk about laws, that's what a law is. But when judges make a ruling, that ruling becomes essentially the guideline that establishes precedence for how things are going to be done going forward. So essentially that becomes a law. And so this slide just kind of goes through reviewing that process. So some core concepts. The Constitution, as you may or may not recall, was drafted in 1887. Well, how does that work? We all remember 1776 was the American Revolution. How is it that there's 11 years difference? Well, we won the revolution, we defeated the British, we then had a had a Continental Congress, they established a constitution, it really wasn't working well, they established a constitutional committee to review that. And the committee, instead of editing the initial constitution, basically threw it out and rewrote it. And that's how we came down with the current constitution. So that took effect in 1788. That's the supreme law of the land. And then there's a quote, I can't tell you off the top of my head who said it. But the quote is that the Supreme Court is not the court of in resort, because they're unfallible. They're unfallible because they're the court of in resort. So if you keep that in mind, that's sort of the stopping point. Whatever the Supreme Court says, that becomes the final say, not because they don't make mistakes, or that, you know, they're always right. But that's just the system we've got set up. So sometimes people get frustrated, you know, well, the Supreme Court didn't read that right, or didn't do that, or that's not right, or whatever. Well, they're infallible, because they're the court of last resort. So we have limited powers, we have doctrine of enumerated powers. So in the 10th Amendment powers not delegated to the United States by the Constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people. So if we think about it, the states, according to the Constitution, states should have the most power, and the federal government is subservient to the states, to a certain extent. But the people have the most rights. And if we go back to the Declaration of Independence, it really, which is what the Constitution was founded off of, the people's rights were the basic thing. So our rights were not given to us by the king, our rights are given to us by God, according to the Declaration of Independence, as human beings. And so it's the government that works for the people, not the people working for the government. At least that's the foundation principles, if you will. So what are some of these powers? So police power is one of the important things. And it's the natural inherent authority of the sovereign to regulate private interests for the public good. It's retained by the states, not ceded to the federal government. And it includes wide, wide range of things to involve the restricting of people's personal liberty, ability to work, and seizing property without compensation. So what are some of these things? What are we talking about more specifically? Well, to require children to be vaccinated as a condition of attending school, to involuntarily detain a person who has a communicable disease. These are all things within public health, right? We do without thinking about it too much. Search, seize, destroy property in order to control disease spread, sometimes without compensation. Throw up a cordon sanitary around a city to prevent disease spread. And I think we talked about quarantine the other day in one of the presentations that stems back to this verbiage. So regulations. Regulations are law created by the executive branch of the government. So they're law, quote unquote, because they have to be followed. There's ramifications. You can be fined. But they're not voted on by the legislature. Remember when I talked earlier, the legislature creates an act that gets passed or creates a bill, becomes an act, and then the president or the government signs off on it, that becomes a law. Regulations are areas where the legislature has delegated to the executive branch to set rules or regulations that are in effect law and can be enforced. Yeah, violations and punishments are usually civil and can be appealed to judges. So they're still due process. But generally with regulations, there's not jail time. They're fines. Yeah. I thought, and you can hear the lawyer, I'm not, that laws are enacted by the legislature and, you know, as it's signed by the governor or the president of any state or federal respectively, I thought that regulations then are the implementation documents for those various laws. So the question was, the perception was that regulations are the implementation documents for laws that have been passed by the legislature. And that's essentially true. So the legislature, as I think I said, or if I didn't, I should have, the legislature delegates the authority to the executive branch in some specific area. So for example, HIPAA is a regulatory law. It was not a law passed by Congress. So Congress in the original act said that health and human services will establish regulations to cover this area by this timeframe. And we're going back now. Yeah. Yeah. Well over 20 years. And was a wide leeway as to what health and human services could do or should do. And so there was a lot of going back and forth within health and human services to decide what the HIPAA regulation should be, because there wasn't enough guidance from the legislature. But once the regulations are written, they are not technically laws, although they have the power or the force of law. So yes, you're, you're right. Yeah. Coming a little bit, it seems like, especially in recent years, we have these massive on the bus bills. For example, the Affordable Care Act, that is thousands and thousands of pages long that sort of delegates to the federal government to come up with just hundreds and hundreds of different policies and regulations and programs, many of which don't really feel anything like the purpose of the original act. I just don't know how you feel whether or not it's really within the spirit of how the founders thought our legislative process before. So the question is that we have a lot of these omnibus laws that end up being thousands of pages long. And they'll get released today and voted on tomorrow some cases that have a whole slew of different areas that they cover. And the question is, and it leaves a lot of delegates a lot of authority to the legislature to the executive branch, and how to enact those laws. Is that really the way the founding fathers intended for the country to run? I mean, our system is set, the Constitution is what it is, short of any future amendments, but it's a living document. And the things that the founding fathers did, we're doing things today. I don't want to take a political stance and I don't want to offend anybody. I'm just saying, for example, I don't think in 1776 or 1800, let's take it a little bit past the start of the establishment of the U.S. Constitution, if there had been an issue with legalizing same-sex marriage, I don't think anybody in the government at that time would have ever thought that that would be a constitutional right that people should be allowed to do that. But we're now 200 years later and now it's acceptable within the culture and it's been legalized. So it is a living document and things do evolve and change, but we still have that foundation that I think we need to go back to and adhere to. And sometimes we drift away and then we'll get back and we may drift to the other side and we'll get back. And I think perhaps one example may be Roe v. Wade. For a century, there was no question that abortion was illegal and Roe v. Wade made it to the Supreme Court and it became legalized. Now, based off of a leaked document from the Supreme Court, that decision may be reversed. So there's potential for things to swing back and forth. So I don't know if that really addressed your question, Jeffrey or Naomi. Yeah, I don't know if this is part, but just bringing that up, what happens if it becomes in any sense, if something becomes illegal, can they go back during the time it was legal and be charged? Yeah, so the question, yeah, right, anything. Yeah, yeah. So the question was, if something is legal and then subsequently made illegal, can a person be prosecuted for that? And the answer is no, there's protections for that in the constitution. Yeah. Because the founding fathers realized that would not be fair or right. And it had been done in England under the king, some of Dan's relatives, I think. So we can blame that on Dan Barry. There was another point I was thinking of making and it'll probably come to me. So example of regulatory delegation is the surgeon general with the approval of the administrator is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the states or possessions or from one state or possession into any other state or possession. So if we stop and think about this, we have one person, the surgeon general with the approval of the secretary can make and enforce such regulations as in his judgment. So there's no approval process per se. I mean, this is about as close to a king as we can get in this country. It doesn't have to be approved by anybody. It doesn't go to a vote. It doesn't go to the legislature for ratification. He says, this is a hazardous condition. We're not doing it anymore. And anybody that does it is subject to arrest. And you got one person that can do this. Well, that sounds pretty outlandish to our way of thinking in a democracy. But on the other hand, if you had, and we go back 200 years, if we had an outbreak of smallpox or cholera, for example, or typhus, we can't sit and wait for six months or a year for Congress to deliberate and go back and forth and then add in some other bill or attach a rider onto it to get a pork barrel addendum to a law to buy a favoritism or buy my vote. If you put this in, that sends so much money to my state, then I'll vote for your bill. I mean, by that time, the whole country will be ravaged, right? So we've got to have a system in place that allows us to respond in an acute emergent situation. And we'll talk about that a little bit more. Somebody have a question? Okay. In that same vein, I, as the health officer, have that same authority in Butte County. I can put people in jail if they don't quarantine. I can declare something a health hazard. And if I say it's so, that makes it so. End of story, done deal. So it's a lot of a lot of power within this realm. So constitutional rights of the individuals, now we're kind of getting into that, right? Because if I make a decree or issue a health order that says this person is going to be put in jail, now I'm infringing on somebody's rights. So as you'll recall, amendments one through 10 are called the Bill of Rights that were ratified in 1791. It's kind of interesting, I think, because when they found that when they wrote the Constitution originally, they knew there was other stuff they needed to put into it. But they were afraid they were going to lose the consensus to be able to get the Constitution passed. So they said, okay, let's get a foundation. Let's get some structure in place. And then we'll work about hanging some of the detail, the meat and the flesh and the organs and so on into the skeleton once we've got that done. Other rights were added, 1795, most relevant to public health, the First Amendment, freedom of religion and speech. And we'll speak to that with respect to COVID. Fourth Amendment, unreasonable search and seizure. Fifth Amendment, due process and takings. And the 14th Amendment, due process and equal protection. So First Amendment, Congress shall make no law respecting the establishment of a religion or prohibiting the free exercise thereof or bridging the freedom of speech or of the press. The right to the people to be secure in their persons, house papers and effects against unreasonable search and seizure should not be violated. That's the fourth amendment. So a critical point when we start talking about police powers and public health in particular. So how does that come into play? So public health inspections are covered under the four or potentially under the fourth amendment. Unreasonably or presumptively if conducted without a warrant, a reasonable cause. So if we are going to take samples or we're going to do testing on somebody, hey, I think maybe you're exposed or you're ill and we want to take blood sample. If I'm going to collect a blood sample from buddy, that's seizure of their person. So medical testing, collecting biological specimens, the reasonable courts balance public health needs against privacy needs. So generally courts have accepted the assertation that the government has a need to protect the public to be able to do that. We're going to see now through COVID in two and a half years, the courts are starting to kind of question that. 14th amendment, nor shall any state deprive any person of life, liberty or property without due process of law nor deny to any person within its jurisdiction the equal protection of the laws. So normally if you get arrested, you have the opportunity to set bail or release, you can go to court. But under the public health law, if I ordered somebody to be quarantined or isolated, that's it, they're done. It is what it is. As long as the sheriff decides, he's going to enforce it, they really have no recourse, at least not immediately. But there is the issue of due process. So there's two types of due process. There's procedural due process. So they have to have notice, opportunity to be heard, counsel, right to call witnesses, right to review by a judge. So certain procedures have to take place, but there's a substantive due process. So protection against interference with liberty, right to privacy. They're much more broader sort of issues or concepts. So one of the key cases decided by the Supreme Court that has set up public health laws as being valid or applicable, argued in 1904 and 1905, that was declared was Jacobson versus Massachusetts. So in this case, the Supreme Court upheld police powers. There's no absolute right to be wholly free from restraint, restraints necessary for the common good. Deference for the legislature in the courts, approval of public health intervention depending on public health necessity, reasonable means, proportionality and harm avoidance. And we'll see that, or we will have seen that as we go through some of the COVID issues and legal issues is the, have we done what's reasonable? Is there a public necessity? And reasonable people may disagree on some of these things, right? Is the action proportional with the risk or the danger? Is there some lesser intrusion that could have accomplished the goal? From a federal standpoint, when we start talking about emergency control of disease, the one thing that gives federal government the most influence across all domains is the commerce cause. Congress shall have the power to regulate commerce with four nations amongst the states and with the Indian tribes. So anytime there's financial or business dealings across state lines or across international borders, Congress has authority in that. So they put a lot of power in there. That gives them the power to tax and spend. And they also have federal statutes. The state then has state statutes and police power. So short of kind of coming in on the, around the corner, police power is regulated to the state. So when we start talking about bioterrorism and the legal authority there, most legal authority already exists. And there's five instructive events, anthrax, West Nile, smallpox vaccine, SARS, and monkeypox. And I think most of us here probably remember those events and how that went on. So I won't spend a lot of time on that. But the legal issues related to these events, collection of records, database, disease reporting, surveillance, control of property, management of persons, quarantine, detention, legal immunity, access to communications, all these sort of areas come into play. Now, when we move from federal to state, a lot of the things won't be exactly the same, but they're gonna be very similar. So the county health officer may take any, I say again, any preventing measure that may be necessary to protect and preserve the public health from any public health hazard during any state of war, emergency, state of emergency, or local emergency as defined by section 8558 of the government code within his or her jurisdiction. So I only have control over Butte County specifically, but as you can see here, I'm essentially the king of Butte County, if you will, or I could be, because I can take any measure necessary to protect and preserve that I think is necessary to protect and preserve public health in a state of emergency. Well, who declares a state of emergency? Who declares a state of emergency in the county? Any ideas? A public health officer? A public health officer, yeah, good. I don't know who said that, but you get a gold star, or I don't have candy to throw out via the internet, but yeah, so if you think about that, I declare the emergency, and that gives me the authority to determine what steps are gonna be taken. It's a necessary evil, if you will, right? We've got to have the ability to act immediately to stop the spread of disease, but it's also an area that has potential for a lot of abuse. So when we start talking about emergencies and disaster health law, and I had some edits, but I don't think Rhonda was able to get them in, but some important points to think about. One, the Stafford Act, when a national disaster is declared by the president, then the Stafford Act can come into play, and basically the law says that nobody in federal government can spend any money that hasn't been authorized for expenditure by Congress, so you have to have an appropriations. Well, obviously, you can't know, oh, well, you know, next year, we're gonna have a hurricane, so we're gonna spend this money down in Mississippi to cover the expense of that hurricane, excuse me. So the Stafford Act allows, is the only act, actually, that allows anybody in federal government to spend any money they want to spend in response to a disaster without it being appropriated. So there's essentially no review by Congress until after the fact. So at the end of the year, they put together the money they spent on a disaster that's gotta be declared by the president. They send the bill to Congress, and Congress basically writes the check. So who, the president has the ability to declare an emergency, national emergency. Where's that authority come from? Anybody know? The War Powers Act? The what? War Powers Act? Can't quite understand the first part of it. War Powers Act. Sort of, yeah, you're really close. There's no direct, is that, who was that that responded? Randy Peters, Pittsburgh. Oh, okay, okay, thanks, Randy. In the Constitution, the president, as the executive officer, or the CEO, if you will, there's a specific authority, and there's implied authority. And under that applied authority, the president is given the ability to declare a national emergency. Now, in support of that, Congress has enacted about over 130 laws that allow then certain agencies or government entities to take action, such as the Stafford Act. Now, an interesting note, which kind of comes into play with COVID, and I think 1976, the National Emergency Act was established. And is anybody familiar with the National Emergency Act? Okay, 1976, this came into play. People started looking at national emergencies. I think in 1976, over the course of 100 years, there'd been, and don't quote me on the numbers, about 76 emergencies declared, and the declaration had never been rescinded. So the National Emergency Act was written to, one, establish a process for the management of emergencies, of national emergencies, and two, to give Congress some level of oversight in these national emergencies. And it was established that Congress would, at certain time points, review these national emergencies and then validate that they were still in existence or they weren't in existence. Now, interestingly, the vast majority of emergencies declared have never been rescinded. And there was some discussion about emergencies under the Trump administration, and now even under Biden with COVID, that, well, one thing that brought it up was Trump declared that the situation with migrants at the southern border was a national emergency. And when he declared a national emergency, that gave him the authority to divert funds from one agency or one department of the government to another department of the government in order to start building the wall without Congress authorizing funds to build the wall. And people argue, well, why is it a national emergency now and it wasn't a national emergency when the numbers of migrants were the same under Obama and so on and so forth? So there's, again, there's the issue of power and authority and checks and balances that we have integral to the Constitution in our normal way of government. So even though Congress established the National Emergency Act to review and look at cleaning up these national emergencies and rescinding the declaration of emergency, there's still the vast majority of emergencies are still ongoing emergencies, if you will, because they've never been rescinded. The Good Samaritan Act. Again, I think an important point with this with respect to public health is that the Good Samaritan Act only applies if, well, let me back up. If you recall the story of the Good Samaritan, they are going along the road, they find the person who's been beaten up and robbed, they manage him, they take him into town, he's left with the innkeeper and he tells the innkeeper that, do whatever is needed to take care of this person, I'll pay the bill. So the key points in relation to that story that apply to the Good Samaritan laws that you can't, you have to be just a happenstance. So if you go out and say, I'm going to go out and help people who are hurt, you're no longer a Good Samaritan, you're in the business of healthcare. So the Good Samaritan law would not apply in that situation. So a lot of people think, well, if I just respond to a disaster as a healthcare worker, I'm being a Good Samaritan, I'm being a nice person. Well, you may well be a nice person, but if you're going out with the intent of helping somebody you're no longer the Good Samaritan, you're going there with the intent. So the Good Samaritan Act in most cases probably will not cover you. We talked a little bit about HIPAA, posse comitatus, that speaks to not being able to use federal troops to quell a civil unrest. So again, going back to Dan's ancestors in England, if the king didn't like what the population was doing or saying, he would call in troops and the troops would just come in and say, hey, we're taking over your house, we're going to camp here or we're going to live here while we quell this demonstration of these people's protest. Well- What about the insurrection? Yeah, so that becomes a different animal. But so that's why when there's a issue with population and security, National Guard troops are activated because they're state assets, not federal assets. So posse comitatus can come into play. So if we look at some comparisons between law enforcement and public health, public health stops further cases of disease spread, law enforcement stops further crimes, public health protects the health and safety of the people, law enforcement protects the health and safety of the public. Public health builds science-based for future prevention, law enforcement apprehends and convicts criminals. So you can see the crossover, there's some similarity, but obvious differences. So what are 10 greatest public health achievements in the 20th century? Vaccinations, motor vehicle safety, COVID-19 crisis, control of infectious diseases, decline of deaths from coronary heart disease, healthier foods, healthier mothers and babies, although that continues to be an issue, family planning, fluoridation of drinking water, recognition of tobacco use as a health hazard. If you think back, I mean, about 50 years ago, if you went to a conference like this, the room would probably be filled with smoke, right? You would never think of smoking in a room today. I hope not. Some of this health privacy things I'm going to skip through. There are a couple of points I want to make. That the privacy laws and policies exist at all levels. So there are all types of laws, all types of governments. If you want to increase the strictness of privacy laws, go down and release the health records of the governor's wife. That's what happened in California when Arnold Schwarzenegger was the governor. Somebody at UCLA accessed his now ex-wife's medical records and released them on social media or talked about it on social media. And it was no time at all before California had stricter privacy rights with regard to health records than anybody else. Again, this is just some of the levels of government that you may see health information privacy laws. Some of the things that are regulated. Types of health data. So the common themes focus is primary on individual privacy protection. Only identifiable health data are covered. Under PIPA, I'm speaking out generally. State laws may be more restrictive and so there may be some other issues. So certainly you would want to look at your own individual state. We always want to keep in mind the definition of protected health information. Individually identified health information used for or disclosed by a covered entity in any form, whether electronically, paper or orally. So it's gotta be identifiable. So if it's not identifiable to the individual, it's not protected. So a lot of times you'll get into different cases and maybe at the hospital or wherever where people say, well, this is protected or this is covered under PIPA. Well, no, it may be protected. No, it may be protected information. There may be an issue with confidentiality but the issue is not with PIPA. So it may be standards would be different for different levels of information. So education records are not included in PIPA. Employment records are not included in PIPA. And non-identifiable health information are not included in PIPA. Doesn't mean that those issues, that information can be released, right? There's still confidentiality but it's just not covered under PIPA. So if there was a release, you're not gonna report that to HHS as a reportable breach. So covered entities are health plans, healthcare clearinghouses, healthcare providers that conduct electronic transmissions. Business associates. And I know this has been around for 20 years. So we all are pretty aware of this. But again, HIPAA privacy rules, again, not covered life insurance, auto insurance, worker comp carriers, employers and others. There are exceptions in public health is one of the exceptions to HIPAA. So even though that information may be PHI, it is allowed to be disclosed to public health. Yes, but only if you're doing public health practice. Right, and I think that's coming up. And yeah, this is some of the things that Murray was just alluding to. Murray said, an exception is public health practice, not necessarily public health research. Here we go. And this is to Murray's point. Distinguishing practice from research is often difficult because many public health activities are based on scientific methods similar to those used in research. So if we're doing a outbreak investigation, in effect, that's research. So as I think Murray was alluding to, covered entities may misinterpret public health practice activities as research activities and deny public health authority access to public health information. The purpose of the activity is key. Research is to contribute to generalizable knowledge, practice is to prevent or control disease or injury and improve the health. So now let's speak a little more specifically to COVID. So long COVID and disability. This is taken from civil rights guidance with the federal government. And they're saying, in light of the rise of long COVID as a persistent and significant health issue, the Office of Civil Rights and the Department of Health and Human Services and the Civil Rights Division of the Department of Justice have joined together to provide this guidance. Long COVID can be a disability under Title II and can be a disability under Title III. And Title III of the Americans with Disability Act, sections 504 of the Rehabilitation Act of 1973 and section 1557 of the Patient Protection and Affordable Care Act, each of these federal laws protects people with disabilities from discrimination. So we don't even really have a good definition of long COVID, but it's already been identified as a disability or potential disability. So we'll see how this is gonna play out. And I will just kind of press for us. We're gonna go through some cases and talk some, excuse me, some case laws and some things that are coming before the courts that have become before the courts. There's really almost none of this is settled yet. We're two years into this and it's gonna have to work through the court system before we have really the final answer. So NFIB versus OSHA in January, 2022, in the case the Supreme Court stayed the enforcement of the rule issued by OSHA that required a test or vaccination mandate for employees and companies with over a hundred employees. And I'm sure we're all remember this or heard about it. And the justification of this was that OSHA, under the Supreme Court, OSHA cannot dictate public health policy, which is in effect what they were doing. That's not in their purview, right? Their purview is worker safety. And there was nothing, generally speaking, that made the workplace a higher risk for individuals to COVID than in the general community. So the Supreme Court said, no, you can't enforce this. And so I think OSHA has essentially dropped the regulation. And so the case hadn't been decided. They could go back and argue it some more. But at this point, they withdrew the regulation, so it's a dead point. In Biden v. Missouri, the court allowed a mandate for vaccination of healthcare workers in institutions that accept Medicare and Medicaid payment. So the government, the golden rule is the one with the gold makes the rules. And the federal government has the big dollars, so they can't necessarily say you have to do this, but they do have the power to say, if you want our money, this is what you have to do to get it. So they, in any institution that was accepting Medicare and Medicaid, which are federal government dollars for the most part, there's some state money in Medicaid, but mostly federal dollars, that the workers had to be vaccinated. And so there was a suit filed in Missouri, and the court ruled that, yeah, this was allowable, that the government can dictate on how they spend their money and what they're gonna spend their money for. So I think this is interesting. You have one case where the Supreme Court has said, yeah, they can dictate mandates to workers. And another case where they've said, no, you can't dictate mandates to workers. So we'll see, we'll see where it ends up. Seize Candy versus Superior Court of Los Angeles. The suit alleges that the employer is liable for wrongful death from an employee spreading COVID to a non-employee spouse who died. And the appellate court has allowed this to proceed. So again, we'll see where this ends up. But basically what happened is the employee got COVID, presumably at the worksite, went home, spread it to his wife. The employee recovered, did fine, but the wife got COVID and died. And so now the employee has filed suit against, and I probably have it reversed. I think it was a woman spread it to the husband, and the husband died. It doesn't matter. Under workers' comp, as we all know, workers' comp covers the employee. It doesn't cover the family or some ancillary person. So there's no protection under workers' comp in this case. And who's to say that this spouse didn't get COVID from somebody in the community. So we'll see what happens with this case. It's before the appellate court. I haven't seen any more updates on that. But of interest, since March 12th, 2020, so this is now just in the last two years, there's 5,432 lawsuits, including 625 class action suits. So more than the basically 5,500 people filed against employers due to alleged labor and employment violations related to the coronaviruses. States with the most filings include California with 1,688, New Jersey with 460, New York with 392, Florida with 376, and Ohio with 273. So I don't know what you can make of that. Are those states more litiginous, or are they more red states or more blue states, or they're more divided? I don't know if you can really draw it in conclusion. Larger populations. Well, I mean, California, New York, those are two biggest, but Texas is in there. They're not listed. Florida is listed, yeah. So I don't know. We'll see how that plays out. I think this is another interesting thing. I do a lot of, I'm on calls every week with the school districts in the state about how we're dealing with COVID and keeping kids in school. And in California, we basically shut down for almost a year. And so there's a lot of, as other states did, I shouldn't call out California, but there's a lot of discussion about kids being out of school, not being in the classroom, and how that's disrupted the learning and the education process. And my son is a second grade teacher. And this last fall, when the kids came back, it was the first time in person. And they'd been remote and he had done that remote. And he had a number of kids with special needs. And about the first three months, he was pulling his hair out because these kids had really lost their social school skills and being able to interact with other kids. He says, by Christmas, they'd kind of gotten back up to speed and they're doing really well. And he was really early for the first two or three months, he was just pulling his hair out. He's got the hairline sort of like mine. And he was just, why did I agree to do this? Maybe I need to look at a different job. And now the kids are in line and he's got a great class and he loves them all and they're doing well. So it's certainly been an issue. But in 2020, 15 states passed liability protection for schools related to COVID. And then in 2021, 14 more states passed similar laws. So nine states have bills pending. Most laws disallow exemption in cases of willful intentional misconduct. Some laws require states to follow federal, state or local guidance for exemptions to apply. So there is some liability protection. And I know a lot of schools in California are doing things or not doing things based on what the attorney is telling them is their liability risks. I think this is interesting because here we have Let Them Breathe, which is an organization adamantly opposed to having anyone, especially kids, wear a mask. And they have filed suit against the New West Charter School and they allege students are being discriminated against and excluded from school because they refuse to wear a mask. The school district in Georgia and Wisconsin are being sued for lack of mitigation measures to prevent COVID. So in one case, you've got a school district being sued because they're trying to mitigate by having people wear masks. And in another case, you're having school districts being sued because they're not doing enough to prevent people from getting COVID. But wearing a mask is not enough or isolation is not enough. So again, we'll see how these all play out. But what's the right answer? We don't know, right? And I mean, we've talked the last two or three days, we've had several discussions about COVID and I'm not sure we really... Certainly what I thought was the right answer in March of 2020 is not what I'm thinking today. So JTVB de Blasio and Martinez v. Newsom, class action suits alleging special needs students were denied free, appropriate and public education during times when the schools were closed using distance learning during the COVID epidemic. So both states, New York and California are being sued because the special needs students were denied access to the school system. In New York, the claim alleges a violation with the American Disabilities Act and in California claims violation of the Individuals with Disabilities Act. So two different acts that they're stemming off of, but similar sort of presentations or discussions. Well, obviously in New York, there was a point of insult to New York City whereas in California, it's a point of insult to Blasio. Blasio is mayor of New York City and Newsom is the governor of California. Right, yeah. But I mean, your point, Murray has said in New York, it's against New York City, in California it's against the state. But if they win the suit in New York City, it's about carry across the state. So the application is the same. I had some other, a couple more slides that didn't get added to the presentation. So I'll just have some notes on them. I wanna go through these here. You're probably aware, how much time do we have? 15 minutes or, okay. You're probably aware there's a group of Navy SEALs that have filed suit against the government because they were told they had to get a COVID shot and they didn't wanna do it. Generally, the courts have been very supportive and have provided a lot of leeway for the military and for the government to dictate what the military members have to do or don't have to do. And when you raise your right hand, as many of us have here and say, I agree to support, defend the constitution of the United States against all enemies, foreign, domestic, so on and so forth, you give away a lot of your rights. And so when they say, you're gonna get a vaccine, you don't say, well, I don't know about that. Let me see the risk benefit. And you can get to see the risk benefits, but put your arm out because you're getting the vaccine. And the reason for this, right, is you have to have, I mean, the mission of AMED when I was in the army was to maintain the fighting strength, right? So you can't have a whole division wiped out because of some infectious disease, whether it's smallpox or COVID. So there was the military said, everybody's getting COVID shot. You don't have to like it, you just have to do it. We had a group of Navy SEALs that said, well, no, we're protesting. It's against our religious beliefs to have to get the COVID shot or to get the COVID shot. And they said, okay, well, if you don't get the COVID shot, you're not worldwide deployable. We're pulling you off of SEAL status. And they said, well, that's a violation of our first amendment rights. And so they said, okay, well, we'll give you a review. We'll review it and see if it's a valid exception. Well, they reviewed them. And I think over a hundred people had put in a request for exception. There was zero exceptions given. So they filed a suit and it's the Secretary of Defense versus the U.S. Navy SEALs. And the U.S. Supreme Court stayed the district order pending a court of appeal saying Navy has extraordinary and compelling interest in seeing that the members get the vaccine. So it was sent back to the appeals court. So it hasn't been settled yet. But right now the Supreme Court is saying, yeah, if the military says that they need to get the shot, they need to get the shot. Or at least that's what they're implying. Now I've questioned, because we get a lot of people in the schools and workplaces saying, well, I have a religious exemption. What's the religious exemption? What religion says you can't get a vaccine? Does anybody know what's the basis of the religious exemption? Jeffrey? Okay. There's no major religion that has an opposition to vaccines. Most people will claim it on the basis of personal individual beliefs or some specific ideology that they adhere to. I think that's true in a lot of cases, but there actually is a thin line. Go ahead, Jeffrey. So we have some acquaintances within the Catholic church that argue that there was some strains of aborted stem cells back generations ago in Europe that some of the Pfizer research was founded upon. And even though those are multi-generations of stem cells because of the origin from fetuses, a lot of very, very orthodox Catholics are against the vaccine, even though the Vatican has said and encouraged us all to get the vaccine. I think Jehovah's Witnesses also agree with that. I know that that does not allow for things like transfusion. Yeah. Murray was saying Jehovah's Witnesses don't allow for infusion and blood products and that sort of thing. But Jeffrey is right. It's the fact that in 1973, they used aborted fetuses tissue to establish the cell cultures or the cell colonies that have now been propagated. What's, well, 73, that was only like 10 or 15 years ago. But our generation of stem cells- Right, yeah. Yeah, our- Yes, yeah, yeah. So, at least in my mind, 73 was only 10 years ago. But we're now, what, 50 years down the road, right? Time goes pretty fast. Anyway, no, it's facts. But it was Merck, and, you know, so it's, that's the argument. I mean- Isn't it a controlled vaccine? No. It's this, it's the COVID vaccine. Yeah. And I, from what I read, it was Madeira. So it would be the MNRA. Yeah, yeah, yeah. That are now 50 years hence. So there's another case where federal workers were mandated to get the vaccine. And the appeals court has overturned a lower court that allowed the president to serve as the CEO. Oh, the lower court had said no, that the federal government can't mandate that federal employees get the vaccine. The appeals court has said, has overturned that ruling. So they haven't said that they have to get the vaccine. But what they've said is the recourse is through the Civil Service Reform Act. So they weren't using the right process or they didn't file the case under the same, the appropriate justification for their suit. Yeah. So I don't know what the federal employees did. You know anything about that? Okay. Yeah. Yeah. In my organization, the vast majority of requests for religious accommodations come to us that are cut and paste carbon copies of like something they got off a website. So it would be the church of whatever is convenient. Yeah. There's the federal employees for medical freedom versus Biden. I think the court has said that the Administrative Services Act of 1946, the president can prescribe policies and directives for economical effect, an effective system. So this again, kind of, I think comes back to the mandate for federal employees and for the contractors as to whether or not they have to be vaccinated. There's also several cases across several states. The federal government has said Head Start employees have to have masks and vaccine. In 22 states, there's been suits filed and that mandate has been blocked by the district or by some district courts. So that's still pending. I think right now, most people or most areas Head Start employees are not wearing masks. Well, most places you don't have to wear a mask anyways. And then finally, masks on airlines. The district court ruled that CDC did not have to just, did not justify the decision and did not follow rulemaking procedures. So when they created the requirement that you had to have masks on all interstate transportation, so trains, buses, airplanes, that was a declaration by the CDC that the president was enforcing. And basically what the district court said is they established a rule. And one of the slides back before, remember we talked about due process, procedural due process and substantive due process. And they said, well, if you're gonna establish a rule, you gotta have due process and you can't just decree it. And so they're saying that on the airlines, this should have been established and gone through the rulemaking process, which requires that it gets posted in the federal registry. People have the ability to comment. Now the federal government doesn't have to accept the comments. People can say, this is a terrible rule, we don't like it. We hate it, it makes no sense. They can say, okay, thank you very much and proceed with the rule. They don't generally do that, but they can. So this is, I think this case is going to be interesting because when that rule was put in place, it was what, two years ago or a year and a half ago. So what are you supposed to do when you have an emergency and trying to stop the spread of disease underneath the auspices of public health? But now the courts are saying, well, you have to establish a rule. So maybe that the order can only stand for so long before it has to be propagated in a rulemaking. So hopefully this has been interesting enough. And to a large part, I haven't given you any answers because we don't really know yet, but any questions? Dan has a question or a comment maybe. Okay, yeah. Dave, this was an outstanding lecture. Thank you very much, I appreciate it. You were talking about the mandate for federal workers and I work for of course, the Federal Aviation Administration. And the mandate came down that everybody had to have a vaccine. And so my boss at the FAA headquarters was in front of the media and everyone else and was asked a question and they said to him, well, this isn't very American to mandate that everybody has to have a vaccine. What would our founding fathers have said if they knew there was gonna be a mandate for a vaccination? And my boss says, well, you know, that George Washington had a mandate that all of his people in his army had to be immunized for smallpox. And those who refused were actually shot in front of a firing squad. So the media comes out the next day and says, FAA recommends people who refuse the vaccination should be shot in front of a firing squad. Thanks, Dave. Yeah, thank you, Dan. Oh, one last thing. If anybody needs to get to the airport, I have arrangements for them to take us over at 12 o'clock. So let me know if you need to go. All right, any other questions or comments? Anybody from the Zoom world? Great presentation, thank you. Yeah, thank you. And thank you from the comments from the people at offsite. Yeah. All right, thank you. I mean, yet to be seen, right? The story's not over. We'll see what happens. And hold on, because it's likely to be a wild ride. I think also kind of Dan's comments reminded me of some of the things, you know, I gave this sort of presentation basics. I don't know if it was at this conference or it might've been at AMOPS, but somebody said, well, if they can identify somebody and say, hey, you know, everybody with blonde hair, you're a health risk, we're going to quarantine you. That's not right. You know, this is an issue. And it really, their point was dating back to Nazi Germany and could we become a Nazi state? And it's interesting. I thought it was interesting. That was a number, probably a decade ago when I had that conversation that some of the people, friends of mine, when we would talk about this would say, hey, you know, they're tagging us, they're identifying us, they're putting the mark of the devil, you know, on our head. We're all going to have to go around with a 666 tattoo if you don't have the vaccine. They're putting nanobots in the vaccine so that you're tagged, you know, it's changing your DNA, so on and so forth. So we'll see where things go. And it's part of living in a democracy. They don't have these kinds of issues in China, right? They say, hey, you're not coming out of your house in a story, done deal. And if you don't agree with them, you just, nobody hears from you anymore. So thank you.

public health law

COVID-19

legal frameworks

Jacobson v. Massachusetts

emergency powers

mask mandates

vaccine mandates

legal precedents

individual rights

public health officials