COVID-19 Legal Update
CORONAVIRUS AND THE LAW: A Legal Guide for the Healthcare Industry
In late 2019, news of a new virus began to emerge from China. While news of the virus was initially unnoticed by the general public, by early February the issue became inescapable. China was unable to contain the virus, and on March 11, 2020, the World Health Organization (WHO) officially declared that the SARS-CoV-2 outbreak, causing the COVID-19 disease, is a pandemic. This designation signifies that the we are in the midst of a global disease outbreak. What is especially concerning is that SARS CoV-2 is a new virus for which there is little or no immunity in the population. It is also clear that the virus is particularly infectious and appears to spread with ease.
Once a pandemic is declared, public health officials use the Pandemic Severity Assessment Framework to determine the impact. This framework examines the clinical severity of the disease, and it also studies the rate of transmissibility. The Centers for Disease Control (CDC) also relies on these factors to determine what actions should be taken to curtail the pandemic. As a result, the CDC Guidelines should be studied by everyone, in particular those the healthcare industry as healthcare workers are on the “frontlines” of fighting this disease every single day.
In this guide we identify various issues that could impact the healthcare industry as a result of the COVID-19 pandemic. The guide describes several significant issues along with the legal implications of them.
This guide was written by Gabor Ovari, Esq., Associate and Member of the Health Care Department, with input from the following attorneys:
- Joan Orsini Ford, Esq., Shareholder and Member of Health Care Department
- John J. Hare, Esq., Chair, Appellate Advocacy & Post-Trial Practice Group and COVID-19 Task Force Member
- David J. Krolikowski, Esq., Co-Chair, Medical Device & Pharmaceutical Liability Practice Group and COVID-19 Task Force Member
- Michele R. Punturi, Esq., Director, Workers’ Compensation Department and COVID-19 Task Force Member
CDC Guidelines Considerations in Long-Term Care
One particular area of concern with COVID-19 is that the most severe outcomes seem to occur in the older population. It is generally true that the older population is often more susceptible to developing significant heath issues. As such, COVID-19 could become especially devastating in nursing homes and long-term care facilities. The virus most often spreads through person-to-person contact or through droplets produced when an infected person sneezes or coughs. In a confined space, such as a long-term care facility, the virus has the potential to quickly spread from resident to resident as well as from infected staff to residents.
As a result, the CDC has promulgated a list of recommendations for healthcare providers, including long-term care facilities. The CDC recommends the following:
- Restrict all visitation except for certain compassionate care situations, such as end of life situations;
- Restrict all volunteers and non-essential healthcare personnel (HCP), including non-essential healthcare personnel (e.g., barbers);
- Cancel all group activities and communal dining;
- Implement active screening of residents and HCP for fever and respiratory symptoms.
The CDC also emphasizes proper hand hygiene practices, which includes the use of alcohol-based hand sanitizer with 60–95% alcohol. Hand sanitizers should be available in every resident room and other resident-care and common areas. Facilities should make tissues and facemasks available for coughing people. These measures could be made more efficient by designating staff members to oversee supplies and to educate patients, residents, and other staff members as to proper etiquette. Finally, protective equipment should be available in areas where resident care is provided. Facilities should have supplies of:
- Respirators (if available and the facility has a respiratory protection program with trained, medically cleared, and fit-tested HCP);
- Eye protection (i.e., face shield or goggles).
An important consideration in this rapidly changing landscape is the question of liability. It is not unthinkable, for example, that a healthcare worker fails to take precautions, like wearing protective mask, or fails to wash hands properly, and thereby contributes to the spread of the virus. Another example could be a scenario in which a patient presents with many of the symptoms of COVID-19—such as a dry cough, a fever, and shortness of breath—and the patient’s physician does not test for the coronavirus. This begs the question whether a nursing home or a long-term care facility that fails to follow the CDC Guidelines could be exposed to liability.
It is important to note that the CDC Guidelines are just what the term implies—they are simply guides proposed by a federal government agency. They are broad, and they do not take individualized circumstances into account. The Guidelines are not intended to set forth the standard of care because healthcare providers must do what is medically indicated under the circumstances. Notwithstanding the guides, healthcare organizations should continue to do their best to optimize patient care under the circumstances, and this can lead to situations where observing the CDC Guidelines is not feasible.
Nevertheless, a review of the websites of several Philadelphia-area plaintiff law firms reveal that many of these firms have started to advertise their services to potential clients who have been exposed to infection. For instance, a prominent Philadelphia-area plaintiff medical malpractice law firm addressed this issue in a blog post on the firm’s website. The article appears to address the subject that “there are many concerns about citizens not being diagnosed or being improperly diagnosed.” This particular article references that “[a]ll healthcare facilities are aware of prevention measures recommended by the CDC concerning this strain of coronavirus. A negligent disregard of infection control protocols could lead to the healthcare facility’s liability for coronavirus cases.” Therefore, it is clear that the plaintiffs’ bar appears to be willing to, at least, review cases dealing with COVID-19 infections. As such, there are indications that the plaintiffs’ bar could possibly zero in on the issue of the CDC Guidelines.
Therefore, specific emphasis of the CDC Guidelines should be frequent in the coming weeks and months.
Workers’ Compensation and COVID-19
Failure to follow the CDC Guidelines could have other consequences as well. The Pennsylvania Bureau of Workers’ Compensation has already seen claims alleging coronavirus infections.
Depending on the circumstances, an infection could be considered an occupational disease. In general, infectious diseases are not covered under workers’ compensation. However, there are occupational disease provisions in the workers’ compensation laws of all states. Therefore, potential compensability if a showing can be made that it:
- Arose out of the course and scope of employment;
- Was the result of a workplace exposure; and
- Was due to employment that puts the employee at greater risk of contracting the disease than the general public.
This could be especially true for healthcare workers who are exposed to possible infection on a daily basis. A claimant’s burden of proving causation would be challenging, but a case could be made.
In the future, however, the defense bar could potentially rely upon the CDC Guidelines as an affirmative defense to these types of claims. Depending upon the circumstances, a “violation of a positive work order” may provide an affirmative defense to a workers’ compensation claim alleging coronavirus infection.
In order to successfully utilize this defense, an employer must satisfy a three-prong test: (1) the injury must be, in fact, caused by the violation of the order or rule; (2) the employee must actually be aware of the order or rule prior to the injury; and (3) the order or rule must implicate an activity not connected with the employee’s work duties.
These factors highlight the importance of not only following the CDC Guidelines but also making sure that the guidelines are specifically communicated to employees. Nevertheless, the defense is very fact specific. This is highlighted in a case where a tree trimmer sustained injuries after falling off of a tree. In See Tree Expert Company v. WCAB (Humphrey), 852 A.2d 459 (Pa.Cmwlth. 2004), the claimant went through safety training with his employer and was aware of the employer’s policy that employees were not permitted to climb off a ladder before first putting a safety line into the tree. The claimant proceeded halfway up a ladder when his supervisor told him that he was going back to his truck. He instructed the claimant to wait. However, the claimant did not wait in violation of his training and his supervisor’s specific directive. Instead, he proceeded to climb the tree. The claimant’s line snapped, and he fell on his back, breaking his arm. Ultimately, the claim petition was granted. The court noted that the claimant’s job duties required him to climb trees and found that the violation was not so disconnected from his duties so as to render him a stranger or a trespasser at the workplace.
Therefore, even if the infection occurs as a result of failure to utilize protective gear for instance, and the CDC Guidelines were communicated to all employees, the outcome of litigated workers’ compensation cases raising this defense will still largely depend upon an individual workers’ compensation judge’s interpretation of whether the failure to adhere to the CDC Guidelines was connected with work duties.
Nevertheless, this case further illustrates the importance of the CDC Guidelines. Carefully adhering to its mandates will allow a healthcare provider to use the guidelines as a shield in a medical malpractice matter, and it can be used as a sword in defending a workers’ compensation claim.
Centers for Medicare and Medicaid Services Advisory
The Centers for Medicare and Medicaid Services (CMS) has also reinforced the importance of the CMS Guidelines. Additionally, CMS outlined several other recommendations. The CMS recommendations provide that nursing homes and long-term care facilities can accept residents diagnosed with COVID-19 as long as the facility can follow CDC guidance for Transmission-Based Precautions. If a nursing home cannot adhere to the precautions, it must wait until these precautions are discontinued.
CMS also noted that nursing homes should admit any individuals whom they would normally admit to their facility, including individuals from hospitals where a case of COVID-19 was, or continues to be, present. The best practice in this regard would be the designation of a specific unit used exclusively for any residents coming or returning from the hospital.
CMS also raised the question whether a nursing home can be cited for not having the appropriate supplies. News outlets and social media are flooded with stories about the supply shortages of facemasks, hand sanitizers, and other personal hygiene products. As a result, CMS recommends that state and federal surveyors should not cite facilities for not having those supplies if they are having difficulty obtaining them for reasons outside of their control. Nevertheless, CMS expects facilities to take actions to mitigate any resource shortages
The Law of Quarantine
As SARS-CoV-2 is spreading around the globe, the term “quarantine” has become part of our daily lexicon. Governments have imposed quarantines and travel bans throughout the globe. Initially, China locked down the city of Wuhan, and the quarantines have snowballed from there. As of March 23, 2020, Pennsylvania Governor Tom Wolf ordered “Stay at Home” orders in seven Pennsylvania counties. Other states have issued similar directives.
In public health, “quarantine” refers to the separation of persons or communities who have been exposed to an infectious disease. “Isolation,” in contrast, applies to the separation of persons who are known to be infected. In the United States the legal authority to establish a quarantine or isolation is promulgated in 42 U.S.C. § 264.
Isolation and quarantine orders have traditionally come from the states. Courts have typically upheld these orders in deference to the states’ broad powers to protect public health. However, the key is that the purpose of the quarantine must be to address a public health emergency rather than an underlying secondary objective. For instance, a quarantine in San Francisco was found to be unlawful because it was racially motivated. Even though the quarantine was enacted during a plague outbreak, the quarantine itself, as established, was not perfectly tailored to address public health.
Perhaps the most significant case dealing with this subject matter is a case that was decided by the Supreme Court helmed by Justice White in 1902. Compagne Francaie v. Board of Health, 186 U.S. 380 (1902) dealt with a situation occurring in 1898, when the ship S.S. Britannia sailed from Palermo to New Orleans. Before docking, it stopped at a state-run quarantine station on the Mississippi, where all 408 passengers, most of whom were Italian immigrants, were certified as free from disease. At New Orleans, however, the ship was not allowed to land. Compagnie Française de Navigation á Vapeur, the Britannia's French owner, filed for a restraining order enjoining the state Board of Health from enforcing the quarantine, arguing that the real purpose of the quarantine was to prevent the immigrants from landing in New Orleans. Ultimately, the quarantine was upheld by the Louisiana Supreme Court.
The Supreme Court of the United States accepted the case on appeal. Justice White wrote the majority opinion. In rendering the Court’s decision, Justice White examined Louisiana’s statute giving authority for the quarantine. After reviewing the arguments proposed by the owner of the ship, the Supreme Court concluded that the quarantine was lawful. The Court concluded that Louisiana’s Act 192, giving permission for the quarantine, was constitutional as it did not represent a violation of the company's due process rights. The Court also highlighted that states generally have broad powers on the subject of health and quarantine. Even Justice Brown, in his dissent, agreed that the power of states to impose quarantines is "so well settled by repeated decisions of this Court as to be no longer open to doubt."
No courts have reversed Compagnie Francaise since it was handed down in 1902. It has been cited in opinions supporting the constitutionality of the power to quarantine. For instance, in 2016, the case was cited by a Federal District Court in New Jersey in a case brought by a nurse who was quarantined for 80 hours after she showed a fever upon her return from Sierra Leone, where she had been treating victims of the 2014 Ebola outbreak.
In addition to the states, the federal government also has broad quarantine powers. Section 361 of the Public Health Service Act grants the Surgeon General the power to apprehend, detain, or issue a conditional release for the purpose of preventing the introduction into the country, or the spread across state lines, of a disease, as designated by executive order. The current list includes “severe acute respiratory syndromes,” which encompasses COVID-19.
In 2017, the CDC issued new quarantine regulations (codified in 42 Code of Federal Regulations [CFR], parts 70 and 71). These regulations make clear that the CDC may isolate, quarantine, examine, or bar travel of anyone within the country whom CDC officials reasonably believe may bring a communicable disease into the country or spread it across state lines. When the Secretary of Health and Human Services declares a public health emergency, these orders can be issued against persons in the pre-communicable stage. The regulations also commit the CDC to providing medical care for people who are detained, and they establish an administrative review process.
While the CDC regulations appear to be quite broad, they are still subject to constitutional limitations. There are four primary limitations. First, as mentioned above, quarantines cannot be imposed in a discriminatory manner. Second, there must be a strong basis for the restrictions. Third, persons who are detained are entitled to judicial review. Fourth, the basic needs of the individuals under quarantine must be met. This means ensuring access to healthcare, medication, food, and sanitation.
It is clear that while there are some limitations to the federal and state governments’ power to impose quarantines and isolations, if the intended purpose of the quarantine is 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,” then the governments’ actions will most likely be deemed constitutional. Conceivably, if the action is consistent with the purpose of the statute, appropriate action could encompass the separation of families and the separation of the critically ill and dying from closest family members in their final moments. In fact, we are already seeing this play out in Italy, where hundreds are dying in solitude every single day, separated from loved ones. The worry is that soon we will see the same scenario play out in hospitals in New York, California, and throughout the United States.
 Compagne Francaie v. Board of Health, 186 U.S. 380 (1902).
 Id. at 385-95.
 Id. at 398.
 Minnesota Rate Cases, 230 U.S. 352 (1913).
 Hickox v. Christie, 205 F.Supp.3d 579, 590-94 (D.N.J. 2016).
 American Civil Liberties Union, Yale Health Global Justice Partnership. Fear, politics and Ebola: how quarantines hurt the fight against Ebola and violate the Constitution. December 2015 (https://www.aclu.org/sites/default/files/field_document/aclu-ebolarepor…. opens in new tab).
 42 U.S.C. § 264
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