There are fewer than 250 cases of swine flu in the United States, but its fervor may prove more contagious than its fever.
The legal community is not immune.
Lawyers say employer clients want to know what they can do within the law to contain the swine flu if it strikes their workplaces. Attorneys for workers say lawmakers need to adopt protections for parents who might miss work because of school closures or a child’s illness.
The American Civil Liberties Union has reissued a 2008 position paper urging government officials to be calm and not use police to address a public health issue. Since the 2001 terrorist attacks, the ACLU said the government has embraced “a health policy through the prism of national security and law enforcement” that trades liberty for security.
“This is not a law enforcement problem. This is a public health problem,” said Mike Masinter, chair of the legal panel of the Florida ACLU and a visiting law professor at the University of Miami. “The basic public health measures that we all ought to practice are as old as the hills. And those are as simple as cover your mouth and use a Kleenex.”
Masinter said the 24-hour news cycle, which has made the swine flu the issue du jour, does little to help. He noted seasonal flu kills 36,000 Americans a year.
“We don’t seem to get too excited about that,” he said. “I don’t think you are going to need much law enforcement in terms of dealing with this. I think it’s very premature to speculate on horrible scenarios that we have no reason to think is going to unfold.”
James G. Hodge Jr., director of the Centers for Law & the Public Health in Baltimore, said whether or not swine flu escalates, state governments in Florida and beyond have declared a public health emergency. Schools in Hallandale Beach and Doral have closed temporarily for confirmed and suspected flu cases.
Under a health emergency, the state’s top health official has broad powers to close schools and public arenas, and to even quarantine people in their homes.
“This one is different,” Hodge said of the swine flu. “It could implicate very different legal issues that we will have to resolve in real time.”
A major epidemic sends several tops spinning at the same time, including emergency management, public health and security, and public health is not necessarily the priority, Hodge said.
In a health care emergency, numerous questions can emerge, such as what is the due process for those who may need to be quarantined and how might liability change for health care professionals.
“There are solutions to these problems,” Hodge said. “We have to work hard now to find the solutions, and those solutions need to be protecting communal health — not in protecting the bottom line.”
A lot was learned from Hurricane Katrina on how to coordinate local, state and federal authorities in responding to a crisis, he said.
The other part of the equation is the civil side.
Fort Lauderdale managing partner Charles Caulkins of Fisher & Phillips, a national firm representing employers, said his clients want to know about their liability during a pandemic.
“One area of concern is what if any liability does a company have for not taking every precaution, where’s the line for liability if a worker gets another worker sick?” he said. “The worst-case scenario is if somebody comes to work sick and contaminates somebody else and that other person dies.”
