Ebola: Selected Legal Issues
Released: 2014-12-16T00:00:00

Introduction

Ebola virus disease (EVD), also known as Ebola hemorrhagic fever, is a deadly communicable disease typically found only in parts of Africa. Once contracted by a human, the virus can be transmitted to others through direct contact with the bodily fluids of an infected individual. An individual who has contracted Ebola virus is not thought to be contagious before symptoms of EVD (such as fever, diarrhea, or vomiting) are observed.

Several West African countries are currently grappling with an unprecedented outbreak of EVD. Here in the United States, where Ebola is not endemic, two undiagnosed EVD cases have been imported from the West African outbreak. In one of these cases, two nurses were infected by the virus while caring for the patient, representing the first instances of Ebola transmission within the United States.

State and federal governments have significant experience dealing with communicable diseases generally, and both levels of government have taken measures to respond to the domestic EVD cases and minimize the further spread of the virus. The federal government has also taken measures to prevent further entry of persons who may have contracted Ebola virus. However, the high fatality rate of EVD may raise questions regarding the sufficiency of state and federal governments' responses to protect against this particular public health threat. Further, the responses to the current Ebola outbreak raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good?

In order to help policy makers evaluate these questions, this report provides a brief overview of the scope of state and federal authorities that have been employed, or may be employed in the future, to prevent transmission of Ebola virus, as well as potential limits on these authorities under current law.

Preventing Spread of the Disease

Efforts to prevent further spread of Ebola have focused on restricting the movement of persons who have been exposed to the virus or who are known to have contracted the virus. Actual and proposed measures to accomplish this include using quarantine or isolation orders under federal or state authority, imposing entry restrictions at the U.S. border, and limiting international air travel to the United States.

Quarantine and Isolation Authority5

Federal Quarantine Authority

Although the terms are often used interchangeably, quarantine and isolation are two distinct concepts. Quarantine typically refers to separating or restricting the movement of individuals who have been exposed to a contagious disease but are not sick. Isolation refers to separating infected individuals from those who are not sick. Primary quarantine authority typically resides with state health departments and health officials; however, the federal government has jurisdiction over interstate and border quarantine.

Federal quarantine and isolation authority derives from the Commerce Clause of the U.S. Constitution, which states that Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several states." Section 361 of the Public Health Service Act (PHS Act) grants the Secretary of Health and Human Services (Secretary) the authority to make and enforce regulations necessary "to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession." The law provides the Secretary with broad authority to apprehend, detain, or conditionally release a person. However, the Secretary may only exercise this authority in relation to communicable diseases published in an executive order issued by the President. Executive Order 13295 lists the communicable diseases for which this quarantine authority may be exercised. In 2000, the Secretary transferred certain authorities related to persons, including quarantine authority, to the Director of the Centers for Disease Control and Prevention (CDC). Both interstate and foreign quarantine measures are now carried out by CDC's Division of Global Migration and Quarantine. The CDC maintains quarantine stations at 20 ports of entry and land-border crossings, including at international airports in the following areas: Atlanta (ATL), Chicago (ORD), Detroit (DTW), Honolulu (HNL), Houston (IAH), Los Angeles (LAX), Miami (MIA), Minneapolis-St. Paul (MSP), New York City (JFK), Philadelphia (PHL), San Francisco (SFO), San Juan (SJU), Seattle (SEA), and Washington, DC (IAD).

Generally, federal regulations authorizing the apprehension, detention, examination, or conditional release of individuals are applicable only to individuals coming into a state or possession from a foreign country or possession. But Section 361 of the PHS Act also authorizes the apprehension and examination of

any individual reasonably believed to be infected with a communicable disease in a qualifying stage and

(A) to be moving or about to move from a State to another State; or

(B) to be a probable source of infection to individuals who, while infected with such disease in a qualifying stage, will be moving from a State to another State.

If found to be infected, such individuals may be detained for such time and in such manner as may be reasonably necessary. Regulations promulgated pursuant to quarantine authority under the PHS Act may be found in Parts 70 and 71 of Title 42 of the Code of Federal Regulations . Part 70 applies to interstate travel, Part 71 to foreign arrivals.

In addition, the Director of the CDC is also authorized to take measures as may be necessary to prevent the spread of a communicable disease from one state or possession to any other state or possession if he determines that measures taken by local health authorities are inadequate to prevent the spread of the disease. To prevent the spread of diseases between states, the regulations prohibit infected persons from traveling from one state to another without a permit from the health officer of the state, possession, or locality of destination, if such a permit is required under the law applicable to the place of destination.

Section 311 of the PHS Act provides for federal-state cooperative activities to enforce quarantines. The federal government may assist states and localities in enforcing their quarantines and other health regulations and, in turn, may accept state and local assistance in enforcing federal quarantines.

State Quarantine Authority

While the federal government has authority to authorize quarantine and isolation under certain circumstances, the primary authority for quarantine and isolation exists at the state level as an exercise of the state's police power. The CDC acknowledges this deference to state authority as follows:

In general, CDC defers to the state and local health authorities in their primary use of their own separate quarantine powers. Based upon long experience and collaborative working relationships with our state and local partners, CDC continues to anticipate the need to use this federal authority to quarantine an exposed person only in rare situations, such as events at ports of entry or in similar time-sensitive settings.

Although every state has the authority to pass and enforce quarantine laws as an exercise of its police powers, these laws vary widely by state. Generally, state and local quarantines are authorized through public health orders, though some states may require a court order before an individual is detained. For example, in Louisiana, the state health officer is not authorized to "confine [a person] in any institution unless directed or authorized to do so by the judge of the parish in which the person is located." Diseases subject to quarantine may be defined by statute, with some statutes addressing only a single disease, or the state health department may be granted the authority to decide which diseases are communicable and therefore subject to quarantine. States also employ different methods for determining the duration of the quarantine or isolation period. Generally, "release is accomplished when a determination is made that the person is no longer a threat to the public health, or no longer infectious."

Federal authority over interstate and foreign travel is clearly delineated under constitutional and statutory provisions. However, in a public health emergency, federal, state, and local authorities may overlap. For example, both federal and state agencies may have quarantine authority over an aircraft arriving in a large city from a foreign country. Thus, coordination between the various levels of government would be essential during a widespread public health emergency.

Legal Challenges to Quarantine

Constitutional rights to due process and equal protection may be implicated by the imposition of a quarantine or isolation order. Modern legal challenges to quarantine and isolation orders are not extensive, although a few cases can provide some basic insights about potential issues. In 1963, a federal district court in United States v. Shinnick upheld the U.S. Public Health Service's medical isolation of an arriving passenger because she had been in Stockholm, Sweden, while the city had been declared by the World Health Organization to be a smallpox-infected area, and she could not show proof of vaccination. The court declined to substitute its own judgment as to whether the plaintiff had been exposed to infection and capable of spreading the disease.

However, at least one state court has ruled that when a state confines an individual in order to prevent the spread of disease, the state must provide the individual with procedural due process protections, such as, inter alia , notice explaining the grounds for confinement, the right to counsel, and the right to engage in cross-examination. This requirement would presumably apply to a federal government quarantine order as well. Quarantines may also be subject to equal protection challenges. In Jew Ho v. Williamson , for example, a court invalidated a quarantine whose requirements applied only to Chinese residents because it was "unreasonable, unjust and oppressive" and constituted discrimination in violation of the Fourteenth Amendment.

Border Entry Issues 32

Federal law confers executive agencies with significant authority to restrict or regulate the entry into the United States of persons who are suspected of carrying Ebola virus or other communicable diseases. However, the stringency of the available restrictions depends upon whether the person is a foreign or U.S. national.

Inadmissibility of Infected Aliens

Foreign nationals do not have a constitutional right to be admitted into the United States. The Immigration and Nationality Act (INA) provides various grounds under which a foreign national may be denied admission, including when he or she is determined to have a "communicable disease of public health significance." The Secretary of the Department of Health and Human Services (HHS) is responsible for defining illnesses constituting a "communicable disease of public health significance" for INA purposes. Current HHS regulations define the term to include diseases, such as EVD, that are listed in a relevant executive order and/or are subject to specified requirements under the rules of the World Health Organization. Accordingly, aliens who have been determined to carry Ebola virus may be denied entry into the United States.

The health-related grounds for exclusion do not apply to most lawful permanent resident aliens (sometimes described as immigrants) who briefly travel abroad. Moreover, assessing whether a foreign national is inadmissible on health-related grounds is an individualized determination of the person's condition, rather than a more general bar applicable to persons who might have had contact with a person carrying a communicable disease. It is also not assured that a foreign national carrying Ebola virus will be identified as such either when applying for a visa to come to the United States (e.g., if the foreign national only became infected after obtaining a visa) or when processed upon arrival at a U.S. port of entry (e.g., if the infected person did not show symptoms of EVD at the time of arrival into the United States).

Blanket Restrictions on Entry of Travelers from Ebola-Stricken Countries

Although the government enjoys authority under federal immigration law to bar the entry of many foreign nationals on specific health-related grounds, as noted above, application of these grounds might not be wholly effective in preventing foreign travelers carrying Ebola from being admitted into the United States. Several Members of Congress have gone further and suggested a blanket ban on the admission into the United States of foreign nationals who reside in or have recently traveled to Ebola-stricken countries —a suggestion that the Obama Administration has thus far opposed.

Section 212(f) of the INA provides that the President, pursuant to a proclamation, may direct the denial of entry to any alien or class of aliens whose entry into the country "would be detrimental to the interests of the United States," including potentially those foreign travelers who have already been issued a visa to travel to the United States. Although this provision seems to have never been employed so broadly, it could potentially be used to restrict the entry of foreign nationals traveling from a particular country or region where there has been an Ebola outbreak. If the President deems the entry of such persons into the country to be contrary to U.S. interests, such a restriction would obviate the need to determine if an individual had actually been infected by Ebola virus.

These immigration-related restrictions apply exclusively to foreign nationals, not U.S. citizens. Indeed, U.S. citizens abroad may enjoy a constitutional right to reenter the country, in which case the government would be required, at a minimum, to overcome a heavier burden to justify a reentry restriction than would be required in situations where a person's constitutional rights were not implicated. However, various travel restrictions discussed elsewhere in this report may impede the ability of any person—regardless of citizenship—from traveling to the United States in a manner that potentially exposes others to a communicable disease.

Airlines and Travel Restrictions45

There are currently no scheduled nonstop flights on commercial airlines between the West African countries with widespread Ebola transmission—Guinea, Liberia, and Sierra Leone—and the United States. On average, about 150 passengers travel from the three affected countries to the United States daily. The majority of these passengers travel to the United States via connecting flights in Europe.

On October 21, 2014, the Department of Homeland Security (DHS) announced that all passengers arriving in the United States whose travel originates in one of the affected countries will be required to fly into one of the following airports with enhanced screening procedures in place: John F. Kennedy International Airport (JFK); Newark Liberty International Airport (EWR); Washington Dulles International Airport (IAD); Hartsfield-Jackson Atlanta International Airport (ATL); and Chicago O'Hare International Airport (ORD). Effective November 17, 2014, these restrictions were extended to passengers whose travel originates in Mali, as a precaution in light of a number of new confirmed EVD cases there.

Federal Airspace Authority

The notion that each nation has complete and exclusive sovereignty over the airspace above its territory has been incorporated into international agreements dating back to the initial rise of international aviation. In 1958, Congress enshrined this principle in federal law by declaring that "The United States Government has exclusive sovereignty of airspace of the United States." Congress delegated the authority to regulate U.S. airspace to the administrator of the Federal Aviation Administration (FAA). The FAA has the authority to restrict the use of U.S. airspace and prevent the entry of aircraft into U.S. airspace. Additionally, the FAA has the authority to prevent U.S. carriers and operators from flying to or within the airspace of other countries. In regulating the use of airspace for the benefit of the public interest, the FAA must consider several factors as being in the public interest, including "assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce" and "regulating air commerce in a way that best promotes safety and fulfills national defense requirements."

During the current Ebola outbreak, the FAA has acknowledged its authority to restrict the use of U.S. airspace, but has cautioned that decisions made on a public health basis would involve other federal agencies. The FAA has stated:

While the FAA has the authority to direct flight operations in United States airspace, any decision to restrict flights between the United States and other countries due to public health and disease concerns would be an interagency decision that would engage the Departments of Health and Human Services/CDC, State, Homeland Security, and Transportation.

CRS has been unable to identify any instances in which the FAA has restricted the use of U.S. airspace by incoming or outgoing flights purely on the basis of a public health concern.

Preventing Specific Passengers from Boarding Flights to the United States

The "Do Not Board" List59

In recent years, federal agencies have developed a travel restriction tool to prevent the spread of communicable diseases of public health significance. The public health Do Not Board (DNB) list was developed by the DHS and the CDC, and made operational in June 2007. The DNB list enables domestic and international health officials to request that persons with communicable diseases who meet specific criteria and pose a serious threat to the public be restricted from boarding commercial aircraft departing from or arriving in the United States. The list provides a tool for management of emerging public health threats when local public health efforts are not sufficient to keep certain contagious individuals from boarding commercial flights.

In order to place a person on the DNB list, state and local health officials contact their local CDC quarantine station. The CDC determines if the person is (1) likely contagious with a communicable disease that presents a serious public health threat, (2) unaware of or likely not to comply with public health recommendations and medical treatment, and (3) likely to try boarding a commercial aircraft. Once a person is placed on the DNB list, airlines are instructed not to issue a boarding pass to the person for any commercial domestic flight or for a commercial international flight arriving in or departing from the United States. Other forms of transportation, such as buses and trains, are not covered by the DNB list. Once a patient is determined to be noncontagious, the CDC and the DHS must remove the person from the list, usually within 24 hours.

Airline Corporate Policies67

Generally, airlines are under no legal obligation to provide transportation simply because a person has a valid ticket. As a matter of corporate policy, airlines have inserted clauses into their contracts of carriage reserving the right to deny transportation to any ticketed passenger under a number of circumstances, including passengers who may pose a safety risk to themselves, other passengers, or crew members. For example, United Airlines contract of carriage states the right to refuse transport to

Passengers who are incapable of completing a flight safely, without requiring extraordinary medical assistance during the flight, as well as Passengers who appear to have symptoms of or have a communicable disease or condition that could pose a direct threat to the health or safety of others on the flight, or who refuse a screening for such disease or condition. (NOTE: UA requires a medical certificate for Passengers who wish to travel under such circumstances.... )

Despite the existence of these contracts of carriage, in refusing to transport customers, air carriers must still abide by federal nondiscrimination laws, such as the Air Carrier Access Act (ACAA), or risk civil penalties. For more on these laws, see " Federal Nondiscrimination Laws ."

The CDC has issued guidance to assist airline crew in identifying passengers who may be infected with Ebola before they board an aircraft. This guidance provides that any passengers with certain symptoms and a history of recent travel in Guinea, Liberia, or Sierra Leone should be reported immediately to the CDC.

Reporting Sick Persons Aboard U.S.-Bound Flights73

Federal law requires an aircraft commander to immediately report to a CDC quarantine station nearest the port or airport of arrival if there is (1) a death on board or (2) any ill person among the passengers and crew. These required reports are to be made to air traffic control and "[o]nce the FAA receives [the] report, it promptly communicates it to the CDC Emergency Operations Center." Therefore, if the flight crew of a commercial aircraft arriving in the United States becomes aware of an ill person on board, which could include a person with EVD symptoms, federal law requires the flight's commander to notify the nearest quarantine station.

The CDC has also issued guidance to instruct airline crews on managing ill passengers on board if Ebola infection is suspected. It also provides guidance on cleaning aircraft to reduce the risk of spreading the disease, including recommending the use of personal protective equipment by cleaning crews.

International Health Regulations (IHR)79

Overview of the IHR

In May 2005, the World Health Assembly adopted a revision of its 1969 International Health Regulations, giving a new mandate to the World Health Organization (WHO) and member states to increase their respective roles and responsibilities for the protection of international public health. The IHR(1969) had focused on just three diseases (cholera, plague, and yellow fever). The IHR(2005) have broadened the scope of the 1969 regulations by addressing existing, new, and re-emergent diseases, as well as emergencies caused by non-infectious disease agents. The IHR(2005) also include provisions regarding designated national points of contact, definitions of core public health capacities, disease control measures (such as quarantine and border controls), and others. The IHR(2005) require the WHO to recommend, and State Parties to use, control measures that are no more restrictive than necessary to achieve the desired level of health protection.

The IHR were agreed upon by a consensus process among the member states, and represent a balance between sovereign rights and a commitment to work together to prevent the international spread of disease. The IHR(2005) are binding on all WHO member states as of June 15, 2007, except for those that have rejected the regulations or submitted reservations. While the IHR(2005) contain mechanisms, such as negotiation and arbitration, to assist States Parties in reaching mutually acceptable solutions where disputes arise, ultimately the IHR(2005) do not provide an enforcement mechanism to compel compliance with WHO provisions. The United States accepted the IHR(2005) with three reservations, including the reservation that it will implement the IHR(2005) in line with U.S. principles of federalism. Within five years of the entry into force date, State Parties must complete development of public health infrastructure that ensures full compliance with the regulations.

Public Health Emergency of International Concern

Article 6 of the IHR(2005) requires member states to assess public health events within their jurisdiction and notify the WHO of any events that may constitute a Public Health Emergency of International Concern (PHEIC). Article 1 of the IHR(2005) defines a "Public Health Emergency of International Concern" as "an extraordinary event which is determined ... (i) to constitute a public health risk to other States through the international spread of disease and (ii) to potentially require a coordinated international response." Cases involving certain diseases, such as smallpox and severe acute respiratory syndrome (SARS), automatically trigger mandatory WHO notification. Whether reporting is required in the case of other diseases, including EVD, depends upon the seriousness of the public health impact, the unusualness or unexpectedness of the event, the risk of international spread, and the risk of international travel or trade restrictions. On August 8, 2014, WHO Director-General Dr. Margaret Chan, upon the advice of the Emergency Committee, declared that the Ebola outbreak constituted a PHEIC.

WHO Recommendations

Under the IHR(2005), if the WHO director-general declares a "Public Health Emergency of International Concern," then the director-general must issue temporary recommendations, defined as "non-binding advice," which will depend upon the nature of the threat. The IHR(2005) do not preclude State Parties from implementing measures that achieve a greater level of health protection than WHO temporary recommendations, provided that such measures are (1) otherwise consistent with the IHR(2005), and (2) not more restrictive of international trade and travel, and not more invasive or intrusive to persons, than reasonably available alternatives that would achieve the appropriate level of health protection.

In the context of international travel during the current Ebola outbreak, the director-general recommended that in countries with Ebola transmission :

There should be no international travel of Ebola contacts or cases, unless the travel is part of an appropriate medical evacuation.

Confirmed cases should immediately be isolated and treated in an Ebola Treatment Centre with no national or international travel until 2 Ebola-specific diagnostic tests conducted at least 48 hours apart are negative;

Contacts (which do not include properly protected health workers and laboratory staff who have had no unprotected exposure) should be monitored daily, with restricted national travel and no international travel until 21 days after exposure;

Probable and suspect cases should immediately be isolated and their travel should be restricted in accordance with their classification as either a confirmed case or contact.

For all other countries, the director-general recommended that "[t]here should be no general ban on international travel or trade." Subsequent recommendations from the director-general provided that in countries with intense Ebola transmission:

Exit screening in Guinea, Liberia and Sierra Leone remains critical for reducing the exportation of Ebola cases. States should maintain and reinforce high-quality exit screening of all persons at international airports, seaport, and major land crossings, for unexplained febrile illness consistent with potential Ebola infection. The exit screening should consist of, at a minimum, a questionnaire, a temperature measurement and, if fever is discovered, an assessment of the risk that the fever is caused by Ebola virus disease (EVD).

Civil Rights

Governmental responses to infectious diseases, such as the current Ebola outbreak, may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? As discussed above in the context of quarantine and isolation, the United States Constitution provides for individual due process and equal protection rights, though these rights are not absolute and may shrink as the needs of the community grow. Aside from these constitutional issues, to what extent do federal nondiscrimination statutes protect individuals that may have been exposed to or diagnosed with Ebola in places of public accommodation and the workplace? Separate from the rights of sick individuals, may employers assert their right to dismiss individuals who are unable to report for work due to illness under an "employment at will" contract? Do certain employers, such as hospitals, have unique obligations under the Occupational Safety and Health Act to ensure that employees treating Ebola patients have a safe workplace? These questions are discussed in the sections below.

Federal Nondiscrimination Laws95

Discrimination against individuals with an infectious disease may be covered by Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), or the Air Carrier Access Act (ACAA). The following sections discuss the status of individuals in three classes: individuals who may have been exposed to Ebola virus but are not sick; individuals who are sick with EVD; and individuals who have recovered from the disease.

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act

Section 504 of the Rehabilitation Act prohibits entities receiving federal funds from discriminating on the basis of disability. The ADA prohibits discrimination against individuals with disabilities in employment, state and local programs, public accommodations, and other areas. Both acts use the same definition of an individual with a disability . An individual with a disability is "[any] person who (i) has a physical or mental impairment which substantially limits one or more of such person's major life's activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment."

Qualifying as an "Individual with a Disability"

It appears that the Rehabilitation Act and the ADA would most likely afford protection to two classes of individuals: ones sick from Ebola virus and those who have recovered from EVD. It is unclear whether the acts would protect individuals who may have been exposed to the virus but are not sick.

A symptomatic individual suffering from EVD would most likely qualify as an individual with a disability because EVD is limiting the major life activity of normal bodily functions. An individual who has recovered from Ebola would appear to qualify as an individual with a disability because he or she would be an individual with a history of EVD. It is not clear whether an individual who may have been exposed to Ebola virus, but is asymptomatic, would be covered by Section 504 or the ADA. It could be argued that such an individual qualifies because he or she is perceived as having Ebola. On the other hand it could be argued that he or she does not qualify because he or she is not perceived as having Ebola but is perceived to be a vector for the virus. Because there are no reported court decisions on whether an individual who is contagious but has no impairment qualifies as an individual with a disability, it is not possible to know whether an individual who is regarded as being contagious, but is not, would qualify as an "individual with a disability" or as an individual "regarded as" having a disability.

The Rehabilitation Act and Contagious Diseases

Neither the Rehabilitation Act nor the ADA specifically discusses contagious diseases. The Supreme Court dealt with the issue in the context of Section 504 in School Board of Nassau County v. Arline . The Court considered the case of an elementary school teacher with recurrent tuberculosis who was terminated from her employment. She claimed she was dismissed because of a disability in violation of Section 504. The school district claimed she was terminated not because of her disability, but because she was contagious and posed a risk to others.

The Court first held that a contagious disease can qualify as a disability under the Rehabilitation Act, but noted that in most cases, a court must undertake an individualized inquiry into whether the plaintiff was otherwise qualified for her job to protect individuals with disabilities from "deprivation based on prejudice, stereotypes, or unfounded fear, while giving appropriate weight to such legitimate concerns … as avoiding exposing others to significant health and safety risks." The Court adopted the test proposed by the American Medical Association to determine whether an employee presents a significant risk to others. The Court held that the factors which must be considered include

findings of facts, based on reasonable medical judgments given the state of medical knowledge about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.

The Court emphasized that courts "normally should defer to the reasonable medical judgments of public health officials."

The ADA and Contagious Diseases

The ADA does not specifically address individuals with contagious diseases, but it addresses individuals with disabilities who pose a "direct threat" to others. Under Title I, an employer may take otherwise prohibited actions against an individual with a disability if the individual poses a "direct threat." The term direct threat means "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." Equal Employment Opportunity Commission regulations determine "direct threat" considering the following factors, based on reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Under Title III, which prohibits discrimination in public accommodations and services operated by private entities, a business may deny accommodations or services to an individual with a disability who presents a "direct threat to the health or safety of others." Direct threat is defined here to mean "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services." Although Title II, governing state and local programs, contains no "direct threat" language, the Department of Justice has interpreted language in Title II to provide the same "direct threat" allowances and requirements as Title III.

An individual sick with EVD who is symptomatic and contagious would probably be found to represent a direct threat to others in close proximity. Therefore, under the ADA, an employer, a business, or a state or local program could take steps to protect others from the contagious individual. However, individuals who are not contagious would probably not represent a direct threat to others. Accordingly, it appears that employers could not act adversely against such individuals, and businesses and state and local programs would need to give such individuals full access under the ADA.

The Air Carrier Access Act110

The Air Carrier Access Act (ACAA) prohibits discrimination by air carriers against "otherwise qualified individual[s]" on the basis of disability. Enacted in 1986, prior to the ADA, the law currently applies to foreign carriers, with respect to flights that begin or end at a U.S. airport, and U.S. carriers, with some exceptions. Generally, the law prohibits the exclusion of qualified individuals with a disability from air transportation or related services, except when specifically permitted under the regulations. The regulations specifically address when it is permissible to exclude a passenger with a communicable disease. Under the regulations, carriers are prohibited from taking the following actions on the basis that a passenger has a communicable disease, unless the passenger's condition poses a direct threat:

refusing to provide transportation; delaying the passenger's transportation, for example, by requiring the passenger to take a later flight; imposing any condition, restriction, or requirement not imposed on other passengers; or requiring the passenger to provide a medical certificate.

The passenger's condition is a direct threat if it poses a "significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services." In determining whether a direct threat exists, the carrier is required to make an individualized assessment, "based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence." In making this individualized assessment, the carrier may rely on "directives issued by public health authorities," including the CDC. If a carrier determines that a passenger poses a direct threat, the carrier must select the "least restrictive response from the point of view of the passenger, consistent with protecting the health and safety of others." Carriers that violate the ACAA may be subject to civil penalty, levied by the Department of Transportation after notice and an opportunity for a hearing.

Employment Issues121

As discussed above, the use of various infection control measures, such as quarantine and isolation, is a critical component of government efforts to minimize the possible spread of Ebola. In 2006, in response to the threat of pandemic influenza, the Homeland Security Council prepared an implementation plan that described more than 300 critical actions, including quarantine and isolation, that could be used to respond to a potential outbreak of contagious disease.

While quarantine and isolation could prove to be effective for minimizing Ebola exposure, they may also raise various employment concerns, particularly for those workers who fear losing their jobs or wages if they are forced to comply with a quarantine or isolation order. Tort law may provide some relief for workers who are terminated while they are quarantined or isolated. Infected workers may also be protected under the Family and Medical Leave Act if it can be established that they have a serious health condition. Finally, some jurisdictions have established employment protections for workers if a quarantine or isolation is ordered. The following sections review these topics in greater detail.

Wrongful Discharge in Violation of Public Policy

The employment-at-will doctrine governs the employment relationship between an employer and employee for most workers in the private sector. An employee who does not work pursuant to an employment contract, including a collective bargaining agreement that may permit termination only for cause or identify a procedure for dismissals, may be terminated for any reason at any time.

Although the employment-at-will doctrine provides the default rule for most employees, it has been eroded to some degree by the recognition of certain wrongful discharge claims brought against employers. In general, these wrongful discharge claims assert tort theories against the employer. A cause of action for wrongful discharge in violation of public policy is one such claim. If isolation or quarantine were used to attempt to limit the spread of Ebola and an employee were terminated because of absence from the workplace, a claim for wrongful discharge in violation of public policy might arise.

A claim for wrongful discharge in violation of public policy is grounded in the belief that the law should not allow an employee to be dismissed for engaging in an activity that is beneficial to the public welfare. In general, the claims encompass four categories of conduct:

refusing to commit unlawful acts (e.g., refusing to commit perjury when the government is investigating the employer for wrongdoing); exercising a statutory right (e.g., filing a claim for workers' compensation, reporting unfair labor practices); fulfilling a public obligation (e.g., serving on jury duty); and whistleblowing.

Although most states appear to recognize a claim for wrongful discharge in violation of public policy, it is possible that a state may allow a claim only under certain circumstances. For example, Texas recognizes such a claim only if an employee is terminated for refusing to perform an illegal act or inquiring into the legality of an instruction from the employer.

While the four categories of conduct identified above represent the classic fact patterns for a claim of wrongful discharge in violation of public policy, other actions could be deemed beneficial to the public welfare and result in a wrongful discharge claim if an employee is terminated for engaging in such actions. Some courts have broadly defined what constitutes "public policy." For example, in Palmateer v. International Harvester Co. , the Illinois Supreme Court indicated that

[t]here is no precise definition of the term. In general, it can be said that public policy concerns what is right and just and what affects the citizens of the State collectively. It is to be found in the State's constitution and statutes and, when they are silent, in its judicial decisions.

Similarly, in Boyle v. Vista Eyewear, Inc. , the Missouri Court of Appeals stated that public policy "is that principle of law which holds that no one can lawfully do that which tends to be injurious to the public or against the public good." These broad definitions suggest that an employee's isolation or quarantine during a pandemic in some states could possibly provide a public policy exception to the at-will rule of employment. It would seem possible for a court to conclude that the isolation or quarantine of individuals during a pandemic serves the public good and that the termination of individuals who are isolated or quarantined violates public policy. Some observers insist, however, that no court has ever held that it violates public policy to discharge an individual because he or she missed work because of a quarantine.

If the government were to mandate individuals to isolate or quarantine themselves either because they were infected or because of the risk of infection, it would seem possible that such an action might constitute a strong argument for the public policy exception to the at-will rule of employment. In such case, the government would appear to be identifying a significant policy that would benefit the public good. Even if the government merely recommended isolation or quarantine rather than mandated such actions, an argument for a public policy exception to the at-will rule would still seem possible.

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) guarantees an eligible employee 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

the birth of a son or daughter of the employee and to care for such son or daughter; the placement of a son or daughter with the employee for adoption or foster care; to care for a spouse or a son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; a serious health condition that makes the employee unable to perform the functions of the position of such employee; and any qualifying exigency arising out of the fact that the spouse or a son, daughter, or parent of the employee is on covered active duty in the Armed Forces or has been notified of an impending call or order to covered active duty in the Armed Forces.

The FMLA applies to any employer in the private sector that engages in commerce, or in any industry or activity affecting commerce, and that has at least 50 employees who are employed for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. To be eligible for family and medical leave benefits, an individual must have been employed for at least 12 months by the employer from whom leave is requested, and must have been employed for at least 1,250 hours of service with such employer during the previous 12-month period.

The FMLA also covers public agencies, including federal, state, and local governments. Unlike employers in the private sector, public employers do not have to employ at least 50 employees to be subject to the FMLA. Employees of public agencies, however, must have worked, generally for a specified number of weeks, to be eligible for benefits.

It seems possible that the FMLA might provide infected employees and employees who care for certain infected relatives with the opportunity to be absent from the workplace. The FMLA defines a serious health condition to mean "an illness, injury, impairment, or physical or mental condition" that involves either "inpatient care in a hospital, hospice, or residential medical care facility; or ... continuing treatment by a health care provider." An employee who been exposed to Ebola may be found to have a serious health condition. If the FMLA's eligibility requirements were met, such an employee would likely be granted leave under the statute.

In addition, because the FMLA grants leave to an employee to care for a spouse, child, or parent with a serious health condition, an employee could be granted leave to care for a relative affected by Ebola if the employee met the statute's eligibility requirements. While on leave, the employee with the serious health condition or the employee caring for a spouse, child, or parent with a serious health condition could comply with a quarantine or isolation order without the fear of termination for at least 12 workweeks.

An employee who was not exposed or who was not responsible for the care of an exposed spouse, child, or parent would not be protected by the FMLA. If such an employee sought isolation or quarantine to avoid exposure and was absent from the workplace, the FMLA would not prohibit the employer from terminating the employee.

State and Federal Laws Providing Employment Protections

At least seven states, recognizing the lack of statutory protection for employees in a situation where isolation or quarantine may be necessary, have enacted legislation that explicitly prohibits the termination of an employee who is subject to isolation or quarantine. In Delaware, Iowa, Kansas, Maryland, Minnesota, New Mexico, and South Carolina, an employer is prohibited from terminating an employee who is under an order of isolation or quarantine, or has been directed to enter isolation or quarantine. Under Minnesota law, an employee who has been terminated or otherwise penalized for being in isolation or quarantine may bring a civil action for reinstatement or for the recovery of lost wages or benefits.

Two additional states have enacted legislation that addresses the treatment of employees who are subject to quarantine or isolation. Under New Jersey law, an affected employee must be reinstated following the quarantine or isolation. Under Maine law, an employer is required to grant leave to an employee who is subject to quarantine or isolation. The leave granted by the employer may be paid or unpaid.

Although federal law does not protect from termination employees who may be absent from the workplace because of isolation or quarantine, there are examples of employee protections that are arguably analogous. The FMLA, for example, does grant leave to an eligible employee who has a serious health condition or who provides care to a spouse, child, or parent with a serious health condition. Moreover, an expansion of the FMLA to allow paid leave because of a serious health condition or to care for a spouse, child, or parent with such a condition has been proposed. The availability of paid leave would likely minimize concerns about lost wages if an Ebola pandemic were to occur.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides another example of employee protection. USERRA requires the reemployment of an employee who has been absent from a position of employment because of service in the uniformed services. USERRA and the FMLA illustrate Congress's awareness of events that may necessitate an employee's absence from the workplace.

The Occupational Safety and Health Administration144

Employers whose employees could face workplace exposure to Ebola virus may be obligated to comply with applicable Occupational Safety and Health Administration (OSHA) requirements. OSHA, through enforcement of the Occupational Safety and Health Act (OSH Act), is generally responsible for protecting workplace safety. To this end, the act authorizes OSHA to promulgate workplace safety standards. Employers that fall within the scope of the OSH Act's—and, thus, OSHA's—jurisdiction must comply with these standards. It appears as though the three primary OSHA-created standards that could apply to employee exposure to Ebola in the workplace are (1) the Bloodborne Pathogens standard, (2) the Personal Protective Equipment standard, and (3) the Respiratory Protection standard.

When no OSHA standard applies to a workplace hazard, employers must comply with the OSH Act's catchall provision, known as the "General Duty Clause." The General Duty Clause generally requires employers to provide workplaces that are free of recognized hazards. Thus, employers must comply with OSHA standards for minimizing a workplace hazard that could expose employees to Ebola virus. However, when such a hazard has no applicable OSHA standard, the General Duty Clause seemingly requires employers to minimize the chance that the hazard will cause employees to contract Ebola virus. Noncompliance with OSHA-created standards and the General Duty Clause can generally lead to penalties against employers. However, the OSH Act does not provide monetary relief to employees who are harmed by employer violations of OSHA standards or the General Duty Clause.

The Bloodborne Pathogens Standard

The Bloodborne Pathogens standard appears aimed at preventing disease-causing microorganisms that are present in the blood—which, according to OSHA, includes Ebola virus—from spreading to employees. The standard generally applies to employers with employees who could reasonably anticipate coming into contact with "blood or other infectious materials" during the performance of their workplace duties (e.g., hospitals).

Among other things, employers that are subject to the Bloodborne Pathogens standard must have written plans for minimizing employee exposure to blood or other infectious materials, and such plans must be made accessible to employees. Employers must review and update these plans at least once per year. The Bloodborne Pathogens standard also contains "universal precautions," which seemingly require covered employers to manage employee behavior to help minimize the odds of employees coming into contact with infectious diseases. For example, these universal precautions include having employees wash their hands with soap and water in certain circumstances; properly dispose of used needles and other sharp medical equipment that has come into contact with human blood; and refrain from eating, drinking, smoking, applying cosmetics, or handling contact lenses in areas where they can reasonably expect to come into contact with human blood. The Bloodborne Pathogens standard further requires that employers provide "appropriate" protective equipment to employees that can be reasonably expected to come into contact with blood or other infectious materials. Appropriate protective equipment is equipment that does not permit blood or other infectious materials to reach an employee's person or clothing. Employers must provide such equipment at no cost to employees.

The Personal Protective Equipment Standard

OSHA's Personal Protective Equipment standard applies whenever personal protective equipment (PPE) is needed because of "hazards of … environment … capable of causing injury or impairment [to employees] in the function of any part of the body through absorption, inhalation, or physical contact." This seemingly would encompass potential exposure to Ebola in the workplace as contact with bodily fluids that are infected with Ebola virus could cause employees to contract the virus. The protective equipment standard requires employers to assess their workplaces to determine whether hazards necessitating PPE are, or are likely to be, present. Employers are then required to have affected employees use PPE that will protect against hazards identified during the assessment. If PPE is required, the employer must generally provide such equipment at no cost to its employees. However, there are exceptions wherein employees can be required to purchase their own protective equipment.

The Respiratory Protection Standard

OSHA has stated that when employees could be exposed to bioaerosols that contain Ebola virus (for example, when cleaning an infected surface with pressurized water could cause infected droplets to become airborne), employers must comply with OSHA's Respiratory Protection standard. The Respiratory Protection standard requires, among other things, that employers provide affected employees with respirators when appropriate; that covered employers develop and implement a written respiratory protection program containing worksite-specific procedures and requirements for employee respirator use; and the selection, fitting, usage, and maintenance of appropriate respirators.

The General Duty Clause

Under the General Duty Clause, employers must provide employees with "employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm." When no OSHA-created standard applies to a recognized workplace hazard but the hazard can cause employees to contract Ebola, the General Duty Clause may require employees to take precautions to reduce the likelihood that the hazard will cause employees to become infected with Ebola.