- “However peaceable we might be in our intentions, our assembling is a physical threat. Our judgments about liberty, I think, need to reflect that.” [Eugene Volokh on freedom of assembly during an epidemic] Suits against quarantine seldom prevail [Chris Dolmetsch and Malathi Nayak, Bloomberg/Claims Journal] Quarantine and public health measures set important precedents in overcoming judges’ suspicion of delegations of power [Keith Whittington]
- If the federal government decided it wanted to block movement between different states to combat virus transmission, where would it get the legal authority, and what means could it lawfully use? [Gene Healy, Cato] The constitutional background on freedom to travel, as well as search and seizure, during an epidemic [Volokh]
- “The common law also appears not to be a good alternative. One can imagine the litigation nightmare if everyone who got the virus attempted to identify and sue some defendant for damages.” [Tim Brennan, Truth on the Market]
- Cracking down on putatively deceptive accounting practices, SEC penalized “‘bill-and-hold’ transaction orders in which a product is not immediately delivered to its customer.” And that was terrible news for anyone in the business of trying to build public health stockpiles — of vaccines, equipment, PPE — that might be needed in a contagious-disease emergency [John Berlau, CEI] Better than compulsory purchase orders: “Using Purchase Guarantees and Targeted Deregulation to Boost Production of Essential Medical Equipment” [Caleb Watney and Alec Stapp, Mercatus Center]
- Flashpoints include drive-in services, curfews, ID and quarantine of churchgoers: “Religious Freedom Clashes With Public Health Enforcers” [Elizabeth Nolan Brown]
- “FDA Denaturing Rules Are Toxic for Small Distillers” [Jacob Grier]
- Can a law ban calls to police by the public that are based on stereotyping or bias? Grand Rapids may find out [Scott Greenfield]
- Courts and EEOC have held that the federal ban on pregnancy discrimination encompasses a ban on discrimination related to abortion [Jon Hyman] Legislative proposal in Ohio, fortunately given little chance of passage, would make anti-vaxxers a protected group under state employment discrimination law [same]
- “Finally Some Robust Research Into Whether ‘Diversity Training’ Actually Works – Unfortunately It’s Not Very Promising” [Jesse Singal, British Psychological Society Research Digest, earlier]
- New EEOC employer reporting requirements represent “an order of magnitude increase in the amount of information the government wants” for one recreation management business [Coyote] How are federal agencies doing on civil rights issues in this administration? Federalist Society panel with Gail Heriot, Kenneth Marcus, Theodore Shaw, Timothy Taylor, moderated by Erik Jaffe;
- When an outcry arose over its partnership decisions, “Paul, Weiss did what every other mainstream institution does today when accused of racial bias: it fell on its sword.” [Heather Mac Donald, City Journal via Eugene Volokh]
- “Targeted Advertising and Age Discrimination: An Explainer” [Joe Ruckert, On Labor]
- “How the Reformulation of OxyContin Ignited the Heroin Epidemic” [William N. Evans and Ethan Lieber, Cato Research Briefs in Economic Policy] Antiquated regulations on methadone need revision [Jeffrey Singer, Cato] Concept of addiction is constantly run together with that of dependence, and applied in such dubious areas as “social media addiction” [Singer]
- EEOC sues Tennessee hospital over lapse of religious accommodation in its mandatory flu shot policy (but is a mask as effective as the vaccine?) [EEOC press release]
- Free to Choose Medicine: a review [Thomas Hemphill, Cato Regulation magazine]
- Texas law limiting med-mal suits: “Fifteenth Anniversary of Proposition 12” [Texans Against Lawsuit Abuse]
- Time to include electronic components in the BAAA: “Biomaterials Access for the 21st Century” [Jim Beck]
- Affordable Care Act’s incentive program punishing hospitals for readmissions had unintended consequences, we know now. Were some of them lethal? [Tyler Cowen on Rishi K. Wadhera, Karen E. Joynt Maddox and Robert W. Yeh, New York Times]
Your dog can get vaccinated against Lyme disease, but you can’t. Thanks for nothing, anti-vaxxers and trial lawyers! [Brian Resnick, Vox; earlier] The article touches only briefly on the role of lawyers and litigation in this episode, but it’s been documented at more length by, among others, Paul Offit in his book The Cutter Incident.
- Burdensome though it is in other ways, HIPAA does not create a private right of action, so no big-ticket damage suits. Connecticut high court rides to rescue by creating new tort for breach of medical confidentiality [Steven Boranian, Drug and Device Law]
- Details of cases aside, once again, should federal law really be requiring healthcare employers to grant religious exemptions to staff unwilling to undergo flu vaccination? [Department of Justice press release on suit against Ozaukee County, Wisconsin; earlier on EEOC settlement against North Carolina hospital]
- First Amendment should come into play when FDA bans drug providers from making truthful statements about their therapies [Henry Miller and Gregory Conko, Reason] And a Cato panel discussion on FDA regulation of speech with former Vascular Solutions CEO Howard Root (author of “Cardiac Arrest”), Christina Sandefur of the Goldwater Institute, and Jessica Flanigan of the University of Richmond, moderated by Cato’s Michael Cannon;
- “Uberizing Nonemergency Medical Transportation” [Ann Marie Marciarille, Prawfsblawg]
- “Protecting Reasonable Physician Choice in Medical Product Cases” [Luther Munford, Drug and Device Law]
- Britain’s National Health Service lurches toward crisis in negligence payouts [BBC, Paul Goldsmith, Centre for Policy Studies]
The Equal Employment Opportunity Commission has announced that Mission Hospital in Asheville, N.C. will pay $89,000 for failing to accommodate employees “who declined flu vaccinations based on their religious beliefs.” [EEOC press release] Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson.
At our religious discrimination tag can be found cases of employees who claimed a Title VII religious discrimination right not to serve alcoholic drinks as part of the duties of a flight attendant, not to haul beer as part of a job as a trucker, not to participate in an employer’s hand-scanner system for fear that it was connected to the Biblical “Mark of the Beast,” and to take prayer breaks in groups as large as 11 at an employer that did not think it could spare that many workers off the floor at the same time.
Under federal law enacted in 1972, employers regularly come under legal constraint to grant such accommodations to workers of many different religious sects. Although from much of the current debate one might imagine that liberals were historically skeptical of accommodation requirements, the actual history is more complicated. As I wrote a while back, “Surprisingly or otherwise, the pressure for federal law to become more indulgent toward private employees’ demands for religious accommodation [has] come both from liberal lawmakers like John Kerry and Hillary Clinton and from conservatives like Rick Santorum and Bobby Jindal.”
Under the elastic “undue hardship” standard, employers may face much uncertainty as to how much disruption of their business they must put up with in the name of accommodation. The flu-shot example suggests that risks to co-workers, customers, and the general public might sometimes enter the calculus as well — an expensive guessing game at best.
P.S. I’ve got a post at Cato making a related point: is it really libertarians who should catch flak for being too indulgent toward persons who want to be excused from vaccination?
“Reversing and remanding a $1.8 million jury verdict, the Second Circuit found Tuesday that Rite Aid was justified in firing a needle-phobic pharmacist who refused to administer immunizations.” [Courthouse News] The man’s trypanophobia — fear of needles — gave him a discrimination claim under the Americans with Disabilities Act, but the Second Circuit ruled the evidence “compels a finding that immunization injections were an essential job requirement.” [Dan Schwartz]
Early reports that President-elect Donald Trump would pick longtime Overlawyered and personal favorite Robert F. Kennedy, Jr. to head a panel on vaccine safety and scientific integrity — I am not making this up — appear to have been based on RFK, Jr.’s own account of his interaction with the President-elect, whose office promptly clarified that no such decision has been made. [Azeen Ghorayshi/BuzzFeed]
More: Seth Mnookin reviews the sad record on RFK and vaccines.
- Study of Type I, Type II error finds FDA much too conservative in drug approval [Vahid Montazerhodjat and Andrew Lo via Tabarrok]
- Behind push to license/regulate personal trainers in Washington, DC and elsewhere: ACA opened spigot of publicly channeled wellness money [Aaron Davis/Washington Post via Tyler Cowen, Peter Suderman]
- “Medical lending”: financiers “invest in operations to remove pelvic implants, [reap] payouts when cases settle” [Alison Frankel and Jessica Dye, Reuters]
- War on Some Drugs again collides with cancer therapy: “Psilocybin, it appears, targets this existential and spiritual distress.” [Ann Althouse]
- Citing First Amendment, federal court enjoins FDA from prohibiting truthful speech by drugmakers about off-label uses [WSJ, Alex Tabarrok (in recent years, federal government “has extracted billions of dollars in settlements from pharmaceutical firms for engaging in what appears to be constitutionally protected speech”), Beck and Sullivan, Drug & Device Law on Amarin v. FDA]
- SEIU 1199: “The union that rules New York” [Daniel DiSalvo/Stephen Eide, Daily Beast and City Journal]
- Controversial therapist who is also anti-vaccine expert witness loses court challenge to Maryland medical license revocation [Beck, Drug and Device Law]
- “Embattled Broward Health paid law firm $10.2 million; tab included a lawyer’s M&Ms” [Miami Herald]
- “Journalists were not very interested in the areas of vaccine policy that are actually debatable. They just wanted to find fools and laugh at them.” [Matt Welch]
- Wider access to pharmaceutically based drug rehabilitation may be sound policy. But is it compelled by the ADA? [Huffington Post via @sbagen]
- Kamala Harris carries water for the SEIU in a hospital deal, and Californians are the losers [John Cochrane]
- Drug case: “Hagens Berman argument ‘gives new meaning to frivolous,’ judge says; sanctions imposed” [ABA Journal]
- California: Kaiser Permanente “ordered to pay woman more than $28 million” [L.A. Times]
- “Bacteria can evolve. So can McDonald’s. Maybe federal policymakers can as well, before it’s too late.” [Steve Chapman]