By Anne Blythe
Much has changed in the four years since SARS-CoV-2 sent the world into a tailspin with emergency declarations, school and business shutdowns, and raging debates about who sets public safety measures and how they intersect with — or conflict with — personal freedoms.
Although COVID-19 is still around, there are vaccines, as well as COVID-19 medications and treatments. There still is much to learn about the not-so-novel coronavirus, but our understanding of it has come a long way.
For many, all the back-and-forth and deep-seated vitriol about the public health edicts has been relegated to the past.
Nonetheless, some of the government decisions that led to deep divides across North Carolina are still being tested in the courts and halls of power.
Just last week, the state Department of Labor posted to its website that petitions had been filed for the creation of infectious disease rules for migrant housing and for employers in the agricultural and construction industries — and for other general jobs.
The Episcopal Farmworker Ministry, North Carolina AFL-CIO, Union of Southern Service Workers, Western North Carolina Workers’ Center, the Hispanic Liaison of Chatham County/El Vinculo Hispano and the NAACP North Carolina State Conference filed requests for changes to existing rules.
The groups seek requirements for face masks, personal protective equipment and social distancing standards to protect workers from airborne infectious diseases in any future public health emergency designated by the governor, General Assembly, federal or state departments of health and human services, the Centers for Disease Control and Prevention or the World Health Organization.
The rules would apply to work sites, employee housing quarters, and buses or other vehicles used to transport workers.
Future health emergencies
“The COVID-19 pandemic has shown that migrant farmworkers are at high risk from airborne infectious diseases,” the organizations wrote in one request for a permanent rule. “Because they typically reside in congregate housing, migrant farmworkers often cook, eat, bathe, use the restroom, and sleep in close proximity to their coworkers. They frequently rely on group transportation in vans or school buses to and from the worksite.”
The organizations argue that farmworkers who come to North Carolina with H-2A temporary agricultural worker visas “travel thousands of miles, usually from Mexico, with dozens of their co-workers on a bus for several days. Those traveling from overseas to North Carolina may not have access to vaccines or testing in their home countries. These unique living and working conditions make migrant farmworkers particularly vulnerable to airborne infectious diseases.”
The organizations also stated that it is essential that the labor department exercise its power “to adopt a permanent rule to protect migrant farmworkers from a future airborne infectious disease pandemic.”
There is a multi-step process for new state agency rules in North Carolina, which includes several opportunities for the public to comment on any proposals. The first public hearing for the migrant housing proposal is scheduled for 10 a.m. Jan. 23. A second hearing on the construction industry recommendations follows at 1 p.m. Jan. 23.
Online links to participate in the January hearings can be found here.
The hearings and review can take months before the Rules Review Commission weighs in. Any major disagreements can kill a proposal or send it to the General Assembly for further consideration.
The proposal going to a hearing later this month is not the first time the groups have sought such protections. In June 2021, the organizations filed a petition for judicial review in Wake County Superior Court after the state labor department had informed them it would not adopt an emergency temporary standard regarding SARS-CoV-2, nor would it adopt a permanent rule establishing requirements for the virus that causes COVID.
Superior Court Judge Bryan Collins ruled on Aug. 8, 2021, that the labor department had been within its purview to reject the request for the temporary emergency standard but had not followed proper rule-making procedure when saying no to more permanent protections.
Then and now, the proposal has exposed the political divides of the pandemic. Labor Commissioner Josh Dobson, a Republican who is not seeking re-election this year, made it clear that holding the hearings was not a signal of support.
“Publication of the two petitions by NCDOL in no way intends to imply an endorsement of either by the Commissioner of Labor,” the department website states.
The Carolina Journal reported that Luke Farley and Jon Hardister, two Republicans seeking the party nomination to run for labor commissioner, are opposed to the petitions and told the publication that if elected, they would fight to rid the department of any such mandates.
Wending through the courts
The North Carolina courts continue to weigh complaints from businesses and organizations that were forced to temporarily close down or substantially scale back during the height of the pandemic.
In November, the state Supreme Court heard arguments in a case filed by Ace Speedway, an Alamance County racetrack in the small community of Altamahaw, northwest of Burlington.
The owners have been seeking financial awards for business lost in the spring and summer months during the first year of the pandemic.
In June 2020, Mandy Cohen, North Carolina’s secretary of health and human services at the time, issued an abatement order and closed the speedway as an “imminent hazard.” The speedway held races on three occasions with thousands of spectators in the stands, openly defying Democratic Gov. Roy Cooper.
Cooper had issued an emergency order under the Emergency Management Act limiting crowd sizes indoors and outdoors to protect public health.
The order stated that the speedway had shown a willingness to place “the public at imminent risk” and was “likely to cause an immediate threat to human life, an immediate threat of serious physical injury, [or] an immediate threat of serious adverse health effects … if no immediate action is taken.”
During the Supreme Court arguments, Republican justices posed questions to Ryan Park, solicitor general with the state Department of Justice, about whether the state Emergency Management Act truly gave Cohen the powers she used to pursue civil action against the racetrack owners.
In her abatement order, she referenced the governor’s executive order. But Justice Trey Allen, a Republican elected to the court in November 2022, said violation of the executive order was a criminal offense and theorized that therefore it provided no civil mechanism for Cohen’s action. That, Allen suggested, pushed beyond the limits of the law set out by the General Assembly.
Justice Richard Dietz, another Republican elected to the Supreme Court in November 2022, took a different tack, questioning whether the abatement order had been issued as retribution after the speedway owners spoke out against the governor.
Park reminded the justices how little was known about COVID-19 in the early days of the pandemic and how public health officials and elected officials were forced to make agonizing decisions based on the best information they had at the time.
That has been a theme in other cases still unresolved in the courts.
Bar owners sued the governor in December 2020 and later added Senate leader Phil Berger and House Speaker Tim Moore to their complaint. In the case filed by Tiffany Howell and others, the bar owners allege that Cooper’s executive order closing bars and then repeatedly extending the closure and eventually severely limiting the number of customers they could have and where they could be served made their businesses “unprofitable to operate.”
In a slightly different case, three former members of the North Carolina Symphony are challenging the symphony’s COVID vaccine mandate in a lawsuit filed in federal court in August 2023. The musicians, Christopher Caudill, Rachel Niketopoulos and David Friedlander, who also goes by Dovid Friedlander, allege that the symphony did not allow for religious exemptions to its mandate. Their unwillingness to get inoculated against COVID with available vaccines led to the musicians being put on unpaid leave, according to their lawsuit, and eventually to job loss.
The symphony rolled back its vaccine mandate in August 2023, but the musicians were not rehired, according to their suit. The symphony has asked for the lawsuit to be dismissed.
That’s just a sampling of the North Carolina court challenges that ultimately could shape public health measures in future pandemics — and possibly erode the legal power constructed over the past century that public health officials have used.
A history of health directors and politics
Gene Matthews, a former chief legal adviser in the Office of General Counsel at the CDC, said some of the lawsuits born out of the pandemic could hinder public health directors for years to come.
Across the country, health directors were put in difficult and sometimes dangerous positions as the country stewed over pandemic responses. Some lost their jobs. Others walked away from theirs, fearful and frustrated by the attacks on science and their homes, families and offices.
Matthews, a North Carolina resident, gave a brief history lesson in an interview with NC Health News to explain the arc of the public health pendulum that he predicts will swing back in due time.
Once upon a time, Matthews said, health director jobs were created to give politicians political cover.
Say there was a plant polluting a river, Matthews said, and politicians were faced with several tough decisions. If they didn’t stop the plant from dumping the pollutants, people downstream would be harmed and might fault the politician for not taking action. If the politician were to shut down the polluting plant, that might lead to job losses and be tough for families and the economy.
Instead of making decisions that could have a political impact, governments had health officials appointed to take on those kinds of issues.
Matthews said he found it ironic that people in the pandemic were accusing public health officials of taking away their rights, or were quick to say that the government was taking over, “when, in fact, there’s stone-cold political reasons for doing this.”
Matthews worries that if there’s another pandemic soon, public health officials or others who have to make key decisions quickly might be stymied.
You don’t want them to run away from tough decisions, nor do you want them to fall on their swords, he said.
“They need to be able to say, ‘Look, I’m the health director. I’m asked to make decisions and calls with the best information that I have,’” Matthews said. Then the director should lay their needs for fighting the public health threat at the feet of the politicians.
“That puts the old political ball back at the courts of the political officials who came up with this,” Matthews added. “You can write this on a cocktail napkin: They’re eventually going to come back around to the way it was set up many years ago.”