By Brian T. Hatch, Esq.

Attorneys are cringing during the COVID-19 Pandemic at claims of people insisting that it is their “right” under HIPAA to not be questioned about their recent contacts or COVID-19 symptoms.   HIPAA only prevents health providers from releasing protect health information to unauthorized persons.  HIPAA even has a special section allowing health care providers to disclose protected health information to public health authorities for the purpose of controlling disease. Sec. 164.512(b).  Ethics rules for doctors and dentists may require that disclosure regarding contagious disease.  HIPAA goes further and allows an authorized covered entity or public health authority to allow disclosure of PHI to those who may have been exposed to a communicable disease.  Health care providers, or anyone else for that matter as a private business or as a government official, can ask any questions about a person’s health when it is necessary and related to a pandemic or infectious disease.

Does that person who is asked contact tracing questions have a “right” not to respond?  Powers granted to executive officials or the legislature in public health emergencies are extremely broad, and mandating answers to those questions may be within that power.   Of course, there is the right not to incriminate oneself under the 5th Amendment.   In a pandemic, one would wish that it were made a crime not to infect someone with a deadly disease, but this pandemic is so new that laws like this haven’t been written yet about COVID-19.   Forcing someone to talk isn’t within the powers of most people, except for perhaps the police or judges.  Public health officials could be given those powers by specific laws or executive orders relating to public health emergencies, and it remains to be seen if that kind of power would be abused enough not to be lawful.

What about the rights of someone with a disability not to reveal information about their health, or be asked probing questions about their disability? As long as it is related to a verifiable disability, and it is directly related to that disability, it might be discriminatory.  But many people who consider themselves “disabled” because they might have a minor asthma condition, for example, aren’t necessarily considered disabled unless it interferes with a “major life activity.” But asking questions about contacts a disabled person may have had does not amount to discrimination based on their disability.  Again, an infectious disease emergency usually creates an exception to most rules, including those preventing discrimination based on disability, depending on its effect on the safety of other non-disabled people.

Going beyond contact tracing, where there is at least a reasonable concern about invasion of someone’s privacy, how about those people who go around insisting that it is their “right” not to wear a mask?  This is a ridiculous argument, considering that it is not a right to infect others with a deadly disease just because some is too vain not to wear a mask or feels is it uncomfortable. Do people have a right to be drunk, and even more so use their drunken body to perhaps kill someone else when they use a car like a deadly weapon?  Businesses, and definitely health care providers, have the right to deny entrance or service to anyone they wish, as long as they are not a member of a protected class.  Are those who want to bare their face a protected class?  Of course not.  And executives or the government have enough powers during a health emergency to mandate that businesses do someone for the safety of others (like OSHA requirements or municipal public health laws for example).    There may be court battles over which government entities orders prevail (state v. municipality), but it most likely will be the entity protecting public safety that will prevail over the entity claiming it is protecting a “freedom” that it will be hard-pressed to define in a legal sense.   It is certainly not a “right” to infect others with a deadly disease.

Attorney Brian T. Hatch
8 North Main Street Suite 403
Attleboro, MA  02703
508-222-6400
BrianHatch@HatchLawOffices.com