Two women shaking hands.

An Empathetic Ear: Strategies for Employer Health and Wellness Negotiations

By Stacey Lee, Jacobo Guzman, and Gladys Johnson

Amid federal and state vaccine mandates, labor shortages, and increased requests for remote work flexibility, employers find themselves in an evolving landscape with less latitude over their organization’s workplace. As a result, employers and employees find themselves in conversations about crafting a “new normal” in which worker well-being is featured more prominently than before.

Read More

Gavel and stethoscope.

Long COVID and Physical Reductionism

By Leslie Francis and Michael Ashley Stein

Like plaintiffs with other conditions lacking definitive physiological markers, long COVID plaintiffs seeking disability anti-discrimination law protections have confronted courts suspicious of their reports of symptoms and insistent on medical evidence in order for them to qualify as “disabled” and entitled to statutory protection.

We call this “physical reductionism” in disability determinations. Such physical reductionism is misguided for many reasons, including its failure to understand disability socially.

Ironically, these problems for plaintiffs may be traced to amendments to the Americans with Disabilities Act (ADA) that were intended to expand coverage for plaintiffs claiming disability discrimination. Three provisions of the Americans with Disabilities Act Amendments Act (ADAAA) are appearing especially problematic for long COVID patients in the courts.

Read More

Waiting area in a doctor's office

Churntables: A Look at the Record on Medicaid Redetermination Plans

By Cathy Zhang

The COVID-19 Public Health Emergency (PHE) expires at the end of this week, with Department of Health and Human Services (HHS) Secretary Xavier Becerra expected to renew the PHE once more to extend through mid-July.

When the PHE ultimately expires, this will also trigger the end of the Medicaid continuous enrollment requirement, under which states must provide continuous Medicaid coverage for enrollees through the end of the last month of the PHE in order to receive enhanced federal funding. This policy improves coverage and helps reduce churn, which is associated with poor health outcomes.

After the PHE, states can facilitate smooth transitions for those no longer eligible for Medicaid by taking advantage of the full 12- to 14- month period that the Centers for Medicare & Medicaid Services (CMS) has established for redetermining eligibility.

In August 2021, CMS released guidance giving states up to 12 months following the end of the PHE to redetermine whether Medicaid enrollees were still eligible and renew coverage. Last month, CMS released new guidance specifying that states must initiate redeterminations and renewals within 12 months of the PHE ending, but have up to 14 months to complete them. The agency is encouraging states to spread its renewals over the course of the full 12-month unwinding period, processing no more than 1/9th of their caseloads in a month, in order to reduce the risk of inappropriate terminations.

Read More

GHRP affiliated researchers.

Introducing the Global Health and Rights Project’s New Affiliated Researchers

(Clockwise from top left: Alma Beltrán y Puga, Luciano Bottini Filho, Ana Lorena Ruano, María Natalia Echegoyemberry)

By Alicia Ely Yamin and Chloe Reichel

Leer en español.

In the years before the pandemic, and especially since the pandemic began, there have been increasing calls to decolonize global health. Setting aside what Ṣẹ̀yẹ Abímbọ́lá rightly characterizes as the slipperiness of both the terms “decolonizing” and “global health,” these calls speak to the need to reimagine governance structures, knowledge discourses, and legal frameworks — from intellectual property to international financial regulation.

Global health law itself, anchored in the International Health Regulations (2005), purports to present a universal perspective, but arguably rigidifies colonialist assumptions about the sources of disease, national security imperatives, priorities in monitoring “emergencies,” and governance at a distance. The diverse tapestry of international human rights scholarship related to health is often not reflected in analyses of the field from the economic North. In turn, that narrow vision of human rights has also increasingly faced critiques from TWAIL, Law & Political Economy, and other scholars, for blinkered analyses that fail to challenge the structural violence in our global institutional order — which the pandemic both laid bare and exacerbated.

In an attempt to enlarge discussion of these important topics and amplify diverse voices, the Petrie-Flom Center is welcoming four new affiliated researchers to the Global Health and Rights Project (GHRP).

Read More

HVAC tech wearing mask and gloves changing an air filter

Providing Clean Air in Indoor Spaces: Moving Beyond Accommodations Towards Barrier Removal

By Jennifer Bard

One of the most persistently frustrating aspects of the Americans with Disabilities Act (ADA), as currently applied to schools and workplaces, is its emphasis on the eligibility of qualifying individuals for accommodation, rather than on population-based removal of barriers to participation.

This individualized approach has always been an uncomfortable fit, given the reality of changes in physical function throughout the lifespan, and is a particularly unsatisfying model for the collective threat of COVID-19, a novel virus that has not only caused at least a million deaths in the United States, but is likely to trigger a variety of disabling sequelae in many (perhaps most) of those who recover.

So far, however, there is mounting evidence that individuals who seek to protect themselves from infection with COVID-19 in school or in the workplace (very much including those who work in schools) are going to have to do based on their individual susceptibility to contracting COVID-19 or to being disproportionately affected by an infection.

Read More

Medicine law concept. Gavel and stethoscope on book close up

Transdisciplinary Integration: The Only Way Forward for Public Health

By Scott Burris

As we look toward National Public Health Week amid two long years of a pandemic, reflection for us at the Center for Public Health Law Research has focused on how we move forward in a mostly broken public health system. We see public health law as a central component of a strong future for public health, where transdisciplinary partnership leads the way.

Read More

Melbourne, Australia - 1st November 2021: A person wearing full PPE holds a vial of sotrovimab medicine covid-19 virus treatment. It is under an emergency use authorization to treat covid in Australia.

Litigation Challenges Prioritization of Race or Ethnicity in Allocating COVID-19 Therapies

By James Lytle

Recent guidance from the U.S. Food & Drug Administration (FDA) encouraged several states to adopt policies that prioritized race or ethnicity in the allocation of monoclonal antibody treatments and oral antivirals for the treatment of SARS-CoV-2.

The guidance proved to be highly controversial, prompting two states, Utah and Minnesota, to withdraw their guidance, and leading a third state, New York, to become the subject of two federal lawsuits that challenge the guidance’s legality: one (Jacobson v. Bassett) brought by a white, non-Hispanic Cornell Law Professor, William Jacobson, in the Northern District of New York (“Jacobson”) and a second (Roberts v. Bassett) initiated by Jonathan Roberts and Charles Vavruska, two white, non-Hispanic residents of New York City in the Eastern District (“Roberts”).

Public health and policy experts have published commentaries on the challenging issues underlying New York’s COVID treatment guidelines and others have offered more detailed guidance, including on this blog, on what criteria should be used in allocating scarce COVID treatments. What follows is focused on the litigation pending in New York and its potential impact on the broader issues at the intersection of the pandemic response and racial equity.

Read More

Washington DC 09 20 2021. More than 600,000 white flags honor lives lost to COVID, on the National Mall. The art installation " In America: Remember" was created by Suzanne Brennan Firstenberg.

Depoliticizing Social Murder in the COVID-19 Pandemic

­­By Nate Holdren

Lire en français.

The present pandemic nightmare is the most recent and an especially acute manifestation of capitalist society’s tendency to kill many, regularly, a tendency that Friedrich Engels called “social murder.” Capitalism kills because destructive behaviors are, to an important extent, compulsory in this kind of society. Enough businesses must make enough money or serious social consequences follow — for them, their employees, and for government. In order for that to happen, the rest of us must continue the economic activities that are obligatory to maintain such a society.

That these activities are obligatory means capitalist societies are market dependent: market participation is not optional, but mandatory. As Beatrice Adler-Bolton has put it, in capitalism “you are entitled to the survival you can buy,” and so people generally do what they have to in order to get money. The predictable results are that some people don’t get enough money to survive; some people endure danger due to harmful working, living, and environmental conditions; some people endure lack of enough goods and services of a high enough quality to promote full human flourishing; and some people inflict the above conditions on others. The simple, brutal reality is that capitalism kills many, regularly. (The steadily building apocalypse of the climate crisis is another manifestation of the tendency to social murder, as is the very old and still ongoing killing of workers in the ordinary operations of so many workplaces.)

The tendency to social murder creates potential problems that governments must manage, since states too are subject to pressures and tendencies arising from capitalism. They find themselves facing the results of social murder, results they are expected to respond to, with their options relatively constrained by the limits placed on them by capitalism. Within that context governments often resort to a specific tactic of governance: depoliticization.

Read More

Patient receives Covid-19 vaccine.

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

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.

Read More

U.S. Supreme Court interior.

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

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.”

Read More