Category: Featured

Patient receives Covid-19 vaccine.

NFIB v. OSHA and Its Contradiction with the GOP’s Disability Employment Agenda

The Petrie-Flom Center Staff Leave a comment

By Doron Dorfman

The COVID-19 pandemic has highlighted the incoherence of the Republican party’s employment agenda, which, on the one hand, deifies full, in-person employment, and, on the other, makes the workplace hostile to this aim through relentless deregulation.

Throughout the pandemic, the GOP has vocally advanced the narrative that employees must physically return to the office to prevent recession.

Additionally, the conservative view frames disability law and policy in terms of its economic value: these policies are desirable insofar as they increase productivity and participation in the job market among disabled Americans.

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WASHINGTON, DC - OCT. 8, 2019: Rally for LGBTQ rights outside Supreme Court as Justices hear oral arguments in three cases dealing with discrimination in the workplace because of sexual orientation.

Affirming Nondiscrimination Rights: HHS Needs to Acknowledge a Private Right of Action for Section 1557 Violations

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By Cathy Zhang

Last week, on the heels of attacks on trans youth and their families in Texas, the Department of Health and Human Services’ (HHS) Office for Civil Rights (OCR) issued a notice and guidance expressing support for transgender and gender nonconforming youth and highlighting the civil rights and privacy laws surrounding gender affirming care.

OCR all but names the Texas attacks as unlawful under Section 1557 of the Affordable Care Act, which prohibits discrimination on the basis of race, color, national origin, sex, age, and disability by federally funded health programs or activities. It notes that for federally funded entities, restricting medically necessary care on the basis of gender — such as doctors reporting parents of patients to state authorities — “likely violates Section 1557.”

The guidance directs those who have been discriminated against on the basis of gender identity or disability in seeking access to gender-affirming health care to file a complaint through OCR. HHS can go further, however, by formally acknowledging that individuals have a legal right to enforce Section 1557 when they have experienced prohibited health care discrimination.

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View over woman' shoulder seated at desk, videoconferencing on computer.

Our New Remote Workplace Culture Creates Opportunities for Disabled Employees

The Petrie-Flom Center Staff Leave a comment

By Arlene S. Kanter

While the COVID-19 pandemic has taken an enormous toll on the nation, it has also opened an unprecedented opportunity to transform our workplaces and offer greater flexibility for employees with and without disabilities.

This shift in our workplace culture presents employment opportunities for disabled people that they may not have had in the past, even with the Americans with Disabilities Act (ADA).

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Healthcare concept of professional psychologist doctor consult in psychotherapy session or counsel diagnosis health.

A Precautionary Approach to Touch in Psychedelic-Assisted Therapy

The Petrie-Flom Center Staff Leave a comment

By Neşe Devenot, Emma Tumilty, Meaghan Buisson, Sarah McNamee, David Nickles, and Lily Kay Ross

Amid accelerating interest in the use of psychedelics in medicine, a spate of recent exposés have detailed the proliferation of abuse in psychedelic therapy, underscoring the urgent need for ethical guidance in psychedelic-assisted therapies (P-AT), and particularly relating to touch and consent.

Acknowledging the need for such guidance, McLane et al. outline one set of approaches to touch in a recent Journal of Medical Ethics blog. However, we find their piece at odds with the available information in the fields of P-AT and psychotherapy. We explain three major concerns: consent and autonomy, risk mitigation, and evidence and reasoning. In our view, these concerns merit a precautionary approach to touch in P-AT, given the current state of research on touch-based interventions.

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U.S. Supreme Court interior.

Who ‘Deserves’ Health, Who ‘Deserves’ Freedom? A Recurrent Divide in SCOTUS Vaccine Mandate Cases

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By Wendy E. Parmet

In October 2020, Martin Kulldorff, Sunetra Gupta and Jay Bhattacharya issued what they called the Great Barrington Declaration (GBD). In it, they argued that “The most compassionate approach [to the pandemic] … is to allow those who are at minimal risk of death to live their lives normally to build up immunity to the virus through natural infection, while protecting those who are at highest risk. We call this Focused Protection.”

Eighteen months and over 600,000 additional deaths later, the Supreme Court embraced that view.  On January 13, in Missouri v. Biden (Missouri), the Court by a 5-4 vote refused to stay a Centers for Medicare and Medicaid (CMS) rule requiring health care workers in facilities that participate in Medicare or Medicaid to be vaccinated against COVID-19 (subject to legally-required exemptions) in order to protect patients. In contrast, in National Federation of Independent Business v. Department of Labor (NFIB), the Court by a 6-3 vote ruled that the Occupational Safety and Health Administration (OSHA) likely exceeded its statutory authority by requiring employers with over 100 employees to mandate vaccination (subject to required exemptions) or masking and testing.  The per curiam majority stated: “Although COVID-19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” Concurring, Justice Gorsuch added that a broad reading of OSHA’s authority would “enable intrusions into the private lives and freedoms of Americans.”

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NEW YORK, NEW YORK: MAY 18, 2020: A jogger runs past a banner by the Battery Park City Authority reminding park visitors to please wear face masks.

Negotiating Masks in the Workplace: When the ADA Does and Does Not Apply

Katherine Macfarlane Leave a comment

By Katherine Macfarlane

Workplaces are, by and large, no longer safe for employees who are high-risk for serious illness or death from COVID-19.

During the early months of the COVID-19 pandemic, it was common for workplaces to require masks, at least in shared spaces. Two years later, though the pandemic is still ongoing, mask requirements are now far less prevalent as a result of the politicization of masks, so-called mask fatigue, and new guidance from the U.S. Centers for Disease Control and Prevention (CDC).

This move to relax masking rules presents significant dangers to those most vulnerable to severe outcomes from COVID-19. High-risk employees still need their co-workers to wear masks. They must now negotiate for safe workplaces in a social and political climate that is increasingly indifferent (or actively hostile) to their needs.

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Professional business teleworkers connecting online and working from home for their corporate company, remote working and networks concept.

Introduction to the Symposium: Build Back Better? Health, Disability, and the Future of Work Post-COVID

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By Chloe Reichel, Marissa Mery, and Michael Ashley Stein

This week marks the two-year anniversary of World Health Organization Director-General Tedros Adhanom declaring COVID-19 a pandemic.

It is at this particular moment that we, in the United States, are beginning to see the sociological construction of the end of the pandemic: metrics measuring COVID-19 transmission have been radically revised to reshape perceptions of risk; masks are, once again, being shed en masse; and remote workers are being urged back to the office. “It’s time for America to get back to work and fill our great downtowns again with people,” President Joseph Biden said during his March 1, 2022 State of the Union address.

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WASHINGTON MAY 21: Pro-choice activists rally to stop states’ abortion bans in front of the Supreme Court in Washington, DC on May 21, 2019.

Tennessee on My Mind: Reflections on the Reinstated Abortion ‘Reason Bans’

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By Cathy Zhang

In February, the Sixth Circuit Court of Appeals issued a one-sentence order allowing Tennessee’s “reason ban” abortion restrictions to go into effect. The restrictions make it a felony for a provider (or any other person) to perform an abortion if the provider “knows” the patient is seeking an abortion on account of the fetus’s sex, race, or probable diagnosis of Down syndrome.

The court below had previously enjoined the Tennessee law, which also includes a pre-viability abortion ban. This order leaves the previability ban in place while lifting the injunction on the reason bans; the reason bans will remain in effect until the Supreme Court makes a further ruling on abortion in Dobbs. In her dissent, Circuit Judge Karen Nelson Moore charged that the court’s order “subvert[s] the normal judicial process” and reflects a growing tendency of federal courts “to delay the adjudication of laws that significantly impair constitutional rights.”

Numerous health organizations, racial justice groups, and disability advocates alike have warned against the harms that the reason bans will inflict on people of color and disabled persons. Statements from these groups, along with 19 states and the District of Columbia, a host of constitutional law scholars, and other amici make clear that the law’s purported concern for marginalized groups belies an effort to restrict abortion access at the expense of pregnant people’s health and constitutional rights.

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Washington, DC, USA - Closeup view of December, 23, 2020: COVID-19 Vaccination Record Card by CDC on blurred documents background.

Private Employer Vaccine Mandates in the Courts

Kaitlynn Milvert Leave a comment

By Kaitlynn Milvert

After the Occupational Safety and Health Administration (OSHA) COVID-19 vaccine mandate for large employers was withdrawn last month, many pronounced private employers to be “on their own” to make decisions about vaccine requirements for their employees.

Until one outlier Fifth Circuit decision last week, federal courts have largely agreed. In lawsuits challenging private employers’ COVID-19 vaccine mandates, federal district courts have routinely denied requests for preliminary injunctions to halt private employers’ vaccination policies from taking effect.

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