Ebola: Selected Legal Issues

Congressional research reportDec 16, 2014

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R43829

Ebola: Selected Legal Issues

Summary

Several West African countries are currently grappling with an unprecedented outbreak of Ebola

virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD

cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases

to date. This report provides a brief overview of selected legal issues regarding measures to

prevent transmission of Ebola virus and the civil rights of individuals affected by the disease.

Quarantine and isolation are restrictions on a person’s movement, imposed to prevent the spread

of contagious disease. The federal government has jurisdiction over interstate and border

quarantine, carried out by the Centers for Disease Control and Prevention (CDC). However,

primary quarantine authority typically resides with state health departments and health officials.

Every state has the authority to pass and enforce quarantine laws as an exercise of its police

powers, but these laws may vary widely by state. State and federal quarantine or isolation orders

may be subject to suits alleging inadequate due process or violations of equal protection, but

modern legal challenges to quarantine and isolation orders are not extensive.

In addition to the quarantine and isolation of persons within the United States, some have

proposed limiting the entry of persons traveling to the United States from countries experiencing

high rates of EVD transmission. Federal agencies’ authority to restrict or regulate the entry into

the United States of persons who are suspected of carrying Ebola virus or other communicable

diseases depends largely upon whether the person is a foreign or U.S. national. Aliens who have

been determined to carry Ebola virus may be denied entry, but the health-related grounds for

exclusion do not apply to most lawful permanent residents who briefly travel abroad. 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.

Proposals to restrict air travel to and from affected countries—regardless of citizenship—have

also been discussed. The Federal Aviation Administration (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. Additionally, the Do Not Board (DNB) list provides a

mechanism for U.S. and international health officials to request that specific persons be restricted

from boarding commercial aircraft to the United States, on the basis that those persons present a

public health risk. Independently, airlines may reserve the right to deny transportation to

passengers who may pose a safety risk, but must act consistent with federal nondiscrimination

laws.

The use of these measures to contain the spread of Ebola may raise a classic civil rights issue: to

what extent can an individual’s liberty be curtailed to advance the common good? In addition to

the constitutional issues noted above, 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). While quarantine and isolation effectively

minimize 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. Infected workers may also be protected under the Family and Medical Leave

Act (FMLA) if it can be established that they have a serious health condition, and employers

whose employees could face workplace exposure to Ebola virus may be obligated to comply with

applicable Occupational Safety and Health Administration (OSHA) requirements.

Congressional Research Service

Ebola: Selected Legal Issues

Contents

Introduction...................................................................................................................................... 1

Preventing Spread of the Disease .................................................................................................... 1

Quarantine and Isolation Authority ........................................................................................... 2

Federal Quarantine Authority .............................................................................................. 2

State Quarantine Authority .................................................................................................. 3

Legal Challenges to Quarantine .......................................................................................... 4

Border Entry Issues .................................................................................................................. 5

Inadmissibility of Infected Aliens ....................................................................................... 5

Blanket Restrictions on Entry of Travelers from Ebola-Stricken Countries ....................... 6

Airlines and Travel Restrictions ................................................................................................ 7

Federal Airspace Authority.................................................................................................. 8

Preventing Specific Passengers from Boarding Flights to the United States ...................... 9

Reporting Sick Persons Aboard U.S.-Bound Flights ........................................................ 10

International Health Regulations (IHR) .................................................................................. 11

Overview of the IHR ......................................................................................................... 11

Public Health Emergency of International Concern .......................................................... 11

WHO Recommendations................................................................................................... 12

Civil Rights .................................................................................................................................... 13

Federal Nondiscrimination Laws............................................................................................. 13

Section 504 of the Rehabilitation Act and the Americans with Disabilities Act ............... 14

The Air Carrier Access Act................................................................................................ 16

Employment Issues .................................................................................................................. 17

Wrongful Discharge in Violation of Public Policy ............................................................ 17

The Family and Medical Leave Act .................................................................................. 19

State and Federal Laws Providing Employment Protections ............................................ 20

The Occupational Safety and Health Administration ........................................................ 21

Contacts

Author Contact Information........................................................................................................... 24

Congressional Research Service

Ebola: Selected Legal Issues

Introduction

Ebola virus disease (EVD), also known as Ebola hemorrhagic fever, is a deadly communicable

disease typically found only in parts of Africa.1 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.2 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.3

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?4

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.

For more detailed information on EVD, see CRS Report R43750, Ebola: Basics About the Disease, by (name red

acted).

Centers for Disease Control and Prevention, Cases of Ebola Diagnosed in the United States, available at

http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/united-states-imported-case.html.

Id.

For a discussion of balancing individual legal rights and responsibility and communal objectives, see Institute of

Medicine, Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations (September 2009).

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Ebola: Selected Legal Issues

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.6 Isolation refers to separating infected

individuals from those who are not sick.7 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.”8 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.”9 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.10 Executive Order 1329511 lists the communicable diseases for which this

quarantine authority may be exercised.12 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).13 Both interstate and foreign quarantine measures are now carried

out by CDC’s Division of Global Migration and Quarantine.14 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).15

This section was written by (name redacted), Legislative Attorn

ey. For a detailed discussion of quarantine and isolation,

see CRS Report RL33201, Federal and State Quarantine and Isolation Authority, by (name redacted).

See Centers for Disease Control and Prevention, Quarantine and Isolation, http://www.cdc.gov/quarantine/.

Id.

U.S. CONST. art. I, § 8, cl. 3.

42 U.S.C. § 264(a).

42 U.S.C. § 264(b).

See Exec. Order No. 13674, 79 Fed. Reg. 45671 (Aug. 6, 2014); Exec. Order No. 13375, 70 Fed. Reg. 17299 (April

1, 2005).

Exec. Order No. 13295, 68 Fed. Reg. 17255 (April 4, 2003) (as amended by Exec. Order No. 13674, 79 Fed. Reg.

45671 (Aug. 6, 2014)). The diseases currently listed are cholera, diphtheria, infectious tuberculosis, plague, smallpox,

yellow fever, viral hemorrhagic fevers (including Ebola), severe acute respiratory syndromes, and influenza viruses

which have the potential to cause a pandemic.

Control of Communicable Diseases; Apprehension and Detention of Persons With Specific Diseases; Transfer of

Regulations, 65 Fed. Reg. 49906. Regulations regarding quarantine upon entry into the United States from foreign

countries are also administered by the CDC, see 42 C.F.R. Part 71.

See CDC Division of Global Migration and Quarantine home page at http://www.cdc.gov/ncpdcid/dgmq/index.html.

CDC, “Quarantine Station Contact List, Map, and Fact Sheets,” http://www.cdc.gov/quarantine/

(continued...)

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Ebola: Selected Legal Issues

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.16 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 stage17 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.18

If found to be infected, such individuals may be detained for such time and in such manner as

may be reasonably necessary.19 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.20

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.21 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.22

Section 311 of the PHS Act23 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

(...continued)

quarantinestationcontactlistfull.html.

42 U.S.C. § 264(c).

“Qualifying stage” means that such a disease is (1) in a communicable stage or (2) in a precommunicable state, if the

disease would likely cause a public health emergency if transmitted to other individuals. 42 U.S.C. § 264(d)(2).

42 U.S.C. § 264(d)(1).

Id.

In response to the SARS epidemic, the Secretary of HHS in 2003 amended 42 C.F.R. §§ 70.6 and 71.3 to incorporate

by reference Executive Order 13295, thus eliminating rulemaking delays for the publication of new diseases.

42 C.F.R. § 70.2.

42 C.F.R. § 70.3.

42 U.S.C. § 243.

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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.24

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.25 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.”26 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.27

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.”28

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

CDC, “Questions and Answers on the Executive Order Adding Potentially Pandemic Influenza Viruses to the List of

Quarantinable Diseases,” May 30, 2014, available at http://www.cdc.gov/quarantine/qa-executive-order-pandemic-listquarantinable-diseases.html.

Paula Mindes, Note, Tuberculosis Quarantine: A Review of Legal Issues in Ohio and Other States, 10 J.L. & HEALTH

403, 409 (1995).

LA. REV. STAT. ANN. § 40:17(A). Exceptions are provided for certain diseases, including smallpox, cholera, yellow

fever, bubonic plague, and tuberculosis. See La. Rev. Stat. Ann. § 40:17(B).

Mindes, supra note 25, at 409. See, e.g., MD. CODE ANN., [Health] § 18-324, which formerly addressed only

quarantine in tuberculosis cases. The governor may now exercise quarantine power during a “catastrophic health

emergency” involving “deadly agents,” which include “anthrax, ebola, plague, smallpox, tularemia, or other bacterial,

fungal, rickettsial, or viral agent, biological toxin, or other biological agent capable of causing extensive loss of life or

serious disability.” MD. CODE ANN., [Public Safety] § 14-3A.

Mindes, supra note 25, at 410.

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show proof of vaccination.29 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.30 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.31

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.33 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.”34 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 order35 and/or are subject to

specified requirements under the rules of the World Health Organization.36 Accordingly, aliens

who have been determined to carry Ebola virus may be denied entry into the United States.37

219 F. Supp. 789 (E.D.N.Y. 1963).

Greene v. Edwards, 164 W. Va. 326, 329 (1980).

Jew Ho v. Williamson, 103 F. 10, 26 (C.C.N.D. Cal. 1900).

This section was written by (name redacted), Legislative Attorney.

See, e.g., Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“an alien seeking admission to the United States requests a

privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a

sovereign prerogative”).

Immigration and Nationality Act (INA) § 212(a)(1), 8 U.S.C. § 1182(a)(1).

42 C.F.R. § 34.2(b)(2) (defining a communicable disease of public health significance to include, inter alia, those

diseases “listed in a Presidential Executive Order, as provided under Section 361(b) of the Public Health Service Act”).

Ebola has been expressly listed by a relevant executive order since 1983. See Exec. Order No. 12452, Revised List of

Quarantinable Communicable Diseases, December 22, 1983 (listing Ebola and other “Viral Hemorrhagic Fevers” as

communicable diseases), revoked and replaced by Exec. Order No. 13295, Apr. 4, 2003 (continuing to specify Ebola as

a communicable disease for purposes of Section 361(b) of the Public Health Service Act), amended by Exec. Order

13375, Apr. 1, 2005, and Exec. Order No. 13674, July 31, 2014.

42 C.F.R. § 34.2(b)(3)(i)-(ii) (including those diseases for which “a single case requires notification to the World

Health Organization (WHO) as an event that may constitute a public health emergency of international concern, or ...

[other diseases for which] the occurrence of which requires notification to the WHO as an event that may constitute a

(continued...)

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The health-related grounds for exclusion do not apply to most lawful permanent resident aliens

(sometimes described as immigrants) who briefly travel abroad.38 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 countries39—a suggestion that the Obama Administration has

thus far opposed.40

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.41 Although this provision seems to have

never been employed so broadly,42 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

(...continued)

public health emergency of international concern.”). For discussion of WHO requirements concerning notification of

Ebola infection, see infra at “Public Health Emergency of International Concern.”

Because of practical concerns, a foreign national arriving at a U.S. port of entry who is believed to have Ebola virus

would be placed in isolation and given medical treatment, rather than immediately being placed in removal proceedings

or given the option of promptly leaving the United States. For discussion of the isolation of arriving persons suspected

of Ebola infection, see supra at “Federal Quarantine Authority.”

See INA § 101(a)(13)(C), 8 U.S.C. § 1101(a)(13)(C) (exempting most lawful permanent residents returning to the

United States after briefly departing the country from being considered applicants for admission).

See Jonathan Weisman, On Ebola Response, Congressional Republicans Put New Focus on Visa Suspensions, N.Y.

TIMES, Oct. 20, 2014, available at http://www.nytimes.com/2014/10/21/us/on-ebola-response-congressionalrepublicans-put-new-focus-on-visa-suspensions.html?hp&action=click&pgtype=Homepage&version=HpSum&

module=first-column-region&region=top-news&WT.nav=top-news&_r=1.

See Jaime Fuller, The Ebola Travel Ban Is Really Politically Popular. Here’s Why It’s Not Happening, The Fix Blog,

WASH. POST, Oct. 20, 2014, at http://www.washingtonpost.com/blogs/the-fix/wp/2014/10/20/the-ebola-travel-ban-isreally-popular-heres-why-its-not-happening/.

INA § 212(f), 8 U.S.C. § 1182(f) (broadly permitting the President to “suspend the entry of all aliens or any class of

aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be

appropriate”).

A list of presidential proclamations pursuant to INA § 212(f) that are currently in effect can be viewed at

http://travel.state.gov/content/visas/english/fees/presidential-proclamations.html. For further discussion regarding the

potential use of INA § 212(f) to restrict the travel of foreign nationals from Ebola-stricken countries, see CRS Legal

Sidebar WSLG1094, Can the President Bar Foreign Travelers from Ebola-Stricken Countries from Entering the United

States?, by (name redacted).

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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.43 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.44

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.46 On average, about 150 passengers travel from the three affected countries to

the United States daily.47 The majority of these passengers travel to the United States via

connecting flights in Europe.48

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).49 Effective November 17, 2014, these

Some federal courts have found that the right of an American citizen to return to the United States from abroad is a

substantive due process right. See Fikre v. F.B.I., 3:13-CV-00899-BR, 2014 WL 2335343 (D. Or. May 29, 2014);

Tarhuni v. Holder, 3:13-CV-00001-BR, 2014 WL 1269655 (D. Or. Mar. 26, 2014); see also Nguyen v. Immigration

and Naturalization Serv., 533 U.S. 53, 67 (2001) (discussing privileges of U.S. citizenship, including “the absolute right

to enter [the] borders” of the United States); Perez v. United States, 502 F. Supp. 2d 301, 306 (N.D.N.Y. 2006) (“a

United States citizen cannot be barred from reentering the country”).

See infra at “Airlines and Travel Restrictions.”

This section was written by (name redacted), Legislative Attorney.

Press Release, “Statement by Secretary Johnson on Travel Restrictions and Protective Measures to Prevent the

Spread of Ebola to the United States,” available at http://www.dhs.gov/news/2014/10/21/statement-secretary-johnsontravel-restrictions-and-protective-measures-prevent [hereinafter DHS Ebola Press Release].

Andrew Grossman, Carol E. Lee, and Jack Nicas, “U.S. to Check Temperatures of West Africa Passengers at Five

Airports,” WALL STREET JOURNAL, Oct. 8, 2014, available at http://online.wsj.com/articles/u-s-to-check-temperaturesof-west-africa-passengers-at-five-airports-1412788163.

The only nonstop flights out of Guinea, Liberia, and Sierra Leone to Europe are operated by Air France (to Paris,

France) and Brussels Airlines (to Brussels, Belgium). “Brussels Becomes Latest EU Airport to Screen for Ebola,”

Agence France Presse, Oct. 20, 2014. Both airlines are members of an airline alliance that includes a U.S. carrier;

members of an alliance often coordinate their services and have codeshare agreements. Brussels Airlines is a member

of the Star Alliance network, along with U.S. carrier United Airlines. Star Alliance, “Travel the World with the Star

Alliance Network,” http://www.staralliance.com/en/about/member_airlines/. Air France is a member of the SkyTeam

network, along with U.S. carrier Delta Airlines. SkyTeam, “SkyTeam Members,” https://www.skyteam.com/en/Aboutus/Our-members/.

DHS Ebola Press Release, supra note 46; White House Blog, “Five U.S. Airports Are Enacting New Screening

Measures to Protect Against Ebola,” available at http://www.whitehouse.gov/blog/2014/10/08/five-us-airports-are(continued...)

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restrictions were extended to passengers whose travel originates in Mali, as a precaution in light

of a number of new confirmed EVD cases there.50

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.51 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.”52

Congress delegated the authority to regulate U.S. airspace to the administrator of the Federal

Aviation Administration (FAA).53 The FAA has the authority to restrict the use of U.S. airspace

and prevent the entry of aircraft into U.S. airspace.54 Additionally, the FAA has the authority to

prevent U.S. carriers and operators from flying to or within the airspace of other countries.55 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.”56

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.57 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.58

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.

(...continued)

enacting-new-screening-measures-protect-against-ebola.

Press Release, “Enhanced Airport Entry Screening to Begin for Travelers to the United States From Mali,” available

at http://www.dhs.gov/news/2014/11/16/enhanced-airport-entry-screening-begin-travelers-united-states-mali. There are

no direct flights from Mali to the United States. Id. Approximately 15 to 20 passengers whose travel originated in Mali

arrive in the United States daily. Id.

See, e.g., Convention for the Regulation of Aerial Navigation (Paris Convention), Oct. 13, 1919, Art. 1; Convention

on International Civil Aviation (Chicago Convention), Dec. 7, 1944, Art. 1.

49 U.S.C. § 40103(a).

49 U.S.C. § 40103(b).

See 49 U.S.C. §§ 40103(b), 44701. FAA issues Notice to Airmen (NOTAM) to announce temporary flight

restrictions in U.S. airspace according to FAA regulation. See 14 C.F.R. §§ 91.137-138, 91.141, 91.143-145.

See 49 U.S.C. §§ 40101(d)(1), 44701(a)(5). For an example of such a restriction, see “Prohibition Against Certain

Flights Within the Territory and Airspace of Somalia,” 72 Fed. Reg. 16710 (April 5, 2007).

49 U.S.C. § 40101(d)(1).

Press Release, “FAA Statement on Ebola,” Oct. 3, 2014, available at http://www.faa.gov/news/press_releases/

news_story.cfm?newsId=17375.

Id.

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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.60 The public health Do Not Board (DNB)

list was developed by the DHS and the CDC, and made operational in June 2007.61 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.62 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.63

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.64 Once a person is placed on the DNB list,65 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.66

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

This section was written by (name redacted), Legislative Attorney.

For a summary of actions taken by DHS and the CDC to improve procedures to restrict persons with serious

communicable diseases who intend to travel despite medical advice, see Public Health and Border Security: HHS and

DHS Should Further Strengthen Their Ability to Respond to TB Incidents.GAO-09-58, October, 2008 [hereinafter GAO

Public Health and Border Security Report].

CDC, “Federal Air Travel Restrictions for Public Health Purposes—United States, June 2007-May 2008,” Morbidity

and Mortality Weekly Report, Sep. 19, 2008, available at http://www.cdc.gov/mmwr/preview/mmwrhtml/

mm5737a1.htm [hereinafter MMWR Report].

Airlines also have general authority to refuse to board passengers with communicable diseases under certain

circumstances pursuant to Air Carrier Access Act of 1986 (ACAA) and its implementing regulations. See 49 U.S.C. §

41705; 14 C.F.R. §§ 382.19, 382.21.

The list, which applies to all citizens and foreign nationals, appears to have been developed under the general

authority of the Aviation and Transportation Security Act of 2001, at 49 U.S.C. § 114(f) and (h).

MMWR Report, supra note 61, at 1009.

The Transportation Security Administration maintains the DNB list, which is separate from the No Fly List used to

prevent known terrorists from boarding airplanes, but it serves a similar purpose. GAO Public Health and Border

Security Report, supra note 60, at 29.

MMWR Report, supra note 61, at 1010.

This section was written by (name redacted), Legislative Attorney.

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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.... )68

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),69

or risk civil penalties.70 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.71 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.72

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.74 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.”75 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.76

The CDC has also issued guidance to instruct airline crews on managing ill passengers on board

if Ebola infection is suspected.77 It also provides guidance on cleaning aircraft to reduce the risk

United Airlines, “United Airlines, Inc. Contract of Carriage (Revised Nov. 7, 2014)” at 19, available at

http://www.united.com/web/format/pdf/Contract_of_Carriage.pdf.

P.L. 99-435 (1986), codified at 49 U.S.C. § 41705.

See 49 U.S.C. § 46301(a)(1)(A).

CDC, “Ebola Guidance for Airlines: Interim Guidance about Ebola Infection for Airline Crews, Cleaning Personnel,

and Cargo Personnel,” http://www.cdc.gov/quarantine/air/managing-sick-travelers/ebola-guidance-airlines.html

[hereinafter CDC Guidance to Airlines].

Id.

This section was written by (name redacted), Legislative Attorney.

42 C.F.R. § 71.21. For ships, the reporting requirement covers a death or illness that occurs within 15 days prior to

the date of expected arrival or since departure from a U.S. port, whichever time period is shorter.

Press Release, “FAA Statement on Ebola,” Oct. 3, 2014, available at http://www.faa.gov/news/press_releases/

news_story.cfm?newsId=17375.

CDC, “Quarantine Station Contact List, Map, and Fact Sheets,” http://www.cdc.gov/quarantine/

quarantinestationcontactlistfull.html.

CDC Guidance to Airlines, supra note 71.

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of spreading the disease, including recommending the use of personal protective equipment by

cleaning crews.78

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.80 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.81 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.82 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.83 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.84 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

Id.

This section was written by (name redacted), Legislative Attorney.

Fifty-Eighth World Health Assembly, agenda item 13.1, Revision of the International Health Regulations, May 23,

2005, at http://www.who.int/csr/ihr/en/.

The full text of the IHR(2005) may be found at http://www.who.int/csr/ihr/IHR_2005_en.pdf.

IHR(2005), Article 59.2.

IHR, Article 56.

HHS Secretary Michael Leavitt announced the acceptance of the IHR(2005) by the United States on December 13,

2006. See News Release at http://archive.hhs.gov/news/press/2006pres/20061213.html.

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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.85 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.86 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.87

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.88 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.89

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.90

IHR(2005), Annex 2.

Id.

WHO, “Statement on the 1st Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West

Africa,” August 8, 2014, available at http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/. The

continued existence of a PHEIC has been reaffirmed twice, on September 22, 2014, and on October 23, 2014. WHO,

IHR Emergency Committee Regarding Ebola, http://www.who.int/ihr/ihr_ec_ebola/en/.

IHR, Articles 1(1), 15(1).

IHR, Article 43(1).

WHO, “Statement on the 1st Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West

Africa,” August 8, 2014, available at http://www.who.int/mediacentre/news/statements/2014/ebola-20140808/en/.

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For all other countries, the director-general recommended that “[t]here should be no general ban

on international travel or trade.”91 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).92

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?93 As discussed above in the context of quarantine and isolation,94 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,96 the Americans with Disabilities Act (ADA),97 or the Air Carrier Access

Act (ACAA).98 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.

Id.

WHO, “Statement on the 3rd Meeting of the IHR Emergency Committee on the 2014 Ebola Outbreak in West

Africa,” October 23, 2014, available at http://www.who.int/mediacentre/news/statements/2014/ebola-3rd-ihr-meeting/

en/.

For a discussion of balancing individual legal rights and responsibility and communal objectives, see Institute of

Medicine, Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations (September 2009).

See supra at “Legal Challenges to Quarantine.”

This section was written by Jane Smith, Legislative Attorney.

29 U.S.C. § 794.

42 U.S.C. §§ 12101 et seq.

42 U.S.C. § 1374(c).

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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.99 Both acts use the same definition of an individual with a disability.100 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.101 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

42 U.S.C. §§ 12101 et seq.

The Rehabilitation Act explicitly refers to the definition in the ADA. 29 U.S.C. § 705(B).

101

480 U.S. 273 (1987).

100

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risks.”102 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.103

The Court emphasized that courts “normally should defer to the reasonable medical judgments of

public health officials.”104

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.”105 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.106 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.”107 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.”108 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.109

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.

102

Id. at 287.

Id. at 288.

104

Id.

105

42 U.S.C. § 12111(3).

106

29 C.F.R. § 1630.2(r).

107

42 U.S.C. § 12182(3).

108

Id.

109

28 C.F.R. Part 35, Appx. A.

103

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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.111 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.112 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.113 The regulations specifically address when it is permissible to

exclude a passenger with a communicable disease.114 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.115

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.”116 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.”117 In making this

individualized assessment, the carrier may rely on “directives issued by public health authorities,”

including the CDC.118 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.”119 Carriers that violate the ACAA may be subject to

110

This subsection was written by (name redacted), Legislative Attorney.

P.L. 99-435, 100 Stat. 1080 (1986), codified at 49 U.S.C. § 41705.

112

14 C.F.R. § 382.7.

113

14 C.F.R. § 382.11. “Individual with a disability” is defined as “any individual who has a physical or mental

impairment that, on a permanent or temporary basis, substantially limits one or more major life activities, has a record

of such an impairment, or is regarded as having such an impairment.” 14 C.F.R. § 382.3. “Physical or mental

impairment” is defined to include “any physiological disorder or condition... affecting one or more of the following

body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” Id. While no federal court

has directly addressed the issue, this definition of “individual with a disability” appears to include individuals with

communicable diseases. Under the ADA, courts generally accept communicable diseases as falling within the scope of

“disability” if the diseases meet the same parameters that other physical and mental impairments must satisfy. See

Bragdon v. Abbott, 524 U.S. 624, 631-42 (1998).

114

14 C.F.R. § 382.21.

115

14 C.F.R. § 382.21(a).

116

14 C.F.R. § 382.3.

117

See 14 C.F.R. §§ 382.21, 382.19(c)(1).

118

14 C.F.R. § 382.11(b)(1).

119

See 14 C.F.R. §§ 382.21, 382.19(c)(2).

111

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civil penalty, levied by the Department of Transportation after notice and an opportunity for a

hearing.120

Employment Issues121

As discussed above,122 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.123

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);

120

49 U.S.C. § 463015.

This section was written by (name redacted), Legislative Attorney.

122

See supra at “Quarantine and Isolation Authority.”

123

Homeland Security Council, National Strategy for Pandemic Influenza: Implementation Plan (GPO May 2006),

available at http://www.flu.gov/planning-preparedness/federal/pandemic-influenza-implementation.pdf.

121

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•

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.124

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.125

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.126

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.”127 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.128

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 atwill rule would still seem possible.

124

See Steven L. Willborn et al., Employment Law: Cases and Materials 82 (1993); John F. Buckley and Ronald M.

Green, 2010 State by State Guide to Human Resources Law 5-46 (2010).

125

See Buckley and Green at 5-60.

126

421 N.E.2d 876, 878 (Ill. 1981).

127

700 S.W.2d 859, 871 (Mo. Ct. App. 1985).

128

See Mark A. Rothstein and Meghan K. Talbott, Job Security and Income Replacement for Individuals in

Quarantine: The Need for Legislation, 10 J. Health Care L. & Pol’y 239 (2007).

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Ebola: Selected Legal Issues

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA)129 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.130

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.131 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.132

The FMLA also covers public agencies, including federal, state, and local governments.133 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.”134 An employee who been exposed

129

29 U.S.C. §§ 2601-2654. See also 5 U.S.C. §§ 6381-6387 (providing family and medical leave for civil service

employees). For additional discussion of the FMLA, see CRS Report RS22090, The Family and Medical Leave Act:

Background and U.S. Supreme Court Cases, by (name redacted).

130

29 U.S.C. § 2612(a)(1). See also 29 U.S.C. § 2612(a)(3) (providing an eligible employee who is the spouse, son,

daughter, parent, or next of kin of a covered servicemember with a total of 26 workweeks of leave during a 12-month

period to care for the servicemember).

131

29 U.S.C. § 2611(4)(I). See also 29 U.S.C. § 2611(2)(B)(ii) (employers who employ 50 or more employees within a

75-mile radius of an employee’s worksite are subject to the FMLA even if they may have fewer than 50 employees at a

single worksite).

132

29 U.S.C. § 2611(2).

133

See 29 U.S.C. § 2611(4)(A)(iii) (defining the term “employer” to include any public agency in accordance with

Section 3(x) of the Fair Labor Standards Act, 29 U.S.C. § 203(x)).

134

29 U.S.C. § 2611(11).

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Ebola: Selected Legal Issues

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.135

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.136 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.137

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.138 Under Maine law, an employer is required to grant leave

to an employee who is subject to quarantine or isolation.139 The leave granted by the employer

may be paid or unpaid.140

135

Although the FMLA allows for at least 12 workweeks of leave, it does not guarantee the payment of wages during

such leave. Under Section 102(d)(2)(B) of the act, 29 U.S.C. § 2612(d)(2)(B), an employer may require the employee

to substitute paid vacation or sick leave for the leave granted under the act. If such a substitution is not made, however,

the employee is likely to be granted unpaid leave.

136

Del. Code Ann. tit. 20, § 3136(6)(d); Iowa Code § 139A.13A; Kan. Stat. Ann. § 65-129d; Md. Code Ann., HealthGen. § 18-906; Minn. Stat. § 144.4196; N.M. Stat. Ann. § 12-10A-16; S.C. Code Ann. § 44-4-530.

137

Minn. Stat. § 144.4196.

138

N.J. Rev. Stat. § 26:13-16.

139

Me. Rev. Stat. Ann. tit. 26, § 875.

140

The availability of wage or income replacement because of quarantine or isolation has been addressed by some

commentators. See, e.g., Nan D. Hunter, “Public-Private” Health Law: Multiple Directions in Public Health, 10 J.

Health Care L. & Pol’y 89 (2007). Many commentators maintain that existing wage or income replacement programs,

such as unemployment and workers compensation, would probably not provide compensation for most employees

affected by quarantine or isolation. Replacement wages were, however, reportedly paid during at least one quarantine.

During the 1916 polio epidemic, quarantined families in the village of Glen Cove, NY, received replacement wages.

See Guenter B. Risse, Revolt Against Quarantine: Community Responses to the 1916 Polio Epidemic, Oyster Bay, New

York, Transactions & Stud. of the College of Physicians of Philadelphia, Mar. 1992, at 34 (“Garbage cans were

distributed free of charge, and quarantined families received replacement wages to compensate for loss of income”).

(continued...)

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Ebola: Selected Legal Issues

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.141 The

availability of paid leave would likely minimize concerns about lost wages if an Ebola pandemic

were to occur.142

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides

another example of employee protection.143 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 Act145 (OSH Act), is

generally responsible for protecting workplace safety.146 To this end, the act authorizes OSHA to

promulgate workplace safety standards.147 Employers that fall within the scope of the OSH

(...continued)

With respect to the current Ebola outbreak, the governor of New York has also indicated that “any [quarantined] health

care worker whose sponsoring organization does not [pay wages during quarantine], as well as adults who meet New

York’s criteria for quarantine, ... would be provided financial assistance for 21 days by the state.” Governor Andrew M.

Cuomo, New York State Releases Fact Sheet on State Screening Protocols at JFK International Airport,

http://www.governor.ny.gov/news/new-york-state-releases-fact-sheet-state-screening-protocols-jfk-internationalairport. Disaster unemployment assistance pursuant to the Stafford Act may also be a possibility if it is determined that

the act is applicable to an Ebola pandemic. See Federal Emergency Management Agency, Fact Sheet – Infectious

Disease, available at https://www.fema.gov/media-library/assets/documents/99710; and CRS Report RL34724, Would

an Influenza Pandemic Qualify as a Major Disaster Under the Stafford Act?, by (name redacted).

141

See, e.g., Family and Medical Leave Insurance Act of 2013, H.R. 3712, 113th Cong. (2013).

142

Some states are exploring the availability of paid leave as part of their state disability insurance programs. In 2002,

legislation that extends disability insurance benefits to individuals who are unable to perform their work because they

are “caring for a seriously ill child, parent, spouse, or domestic partner” was enacted in California. See Cal. Unemp.

Ins. Code §§ 3300-3306. Under the so-called Paid Family Leave Insurance Program, an individual who meets the

program’s requirements is eligible for benefits equal to one-seventh of the individual’s weekly benefit amount on any

day in which he or she is unable to perform the individual’s regular or customary work. Similar legislation has also

been enacted in New Jersey. See A. 873, 213th Leg., Reg. Sess. (N.J. 2008).

143

38 U.S.C. §§ 4301-4333.

144

This section was written by (name redacted), Legislative Attorney.

145

P.L. 91-596, 84 Stat. 1590 (1970). For general information on the OSH Act and OSHA, see CRS Report R43768,

The OSH Act: A Legal Overview, by (name redacted).

146

It is important to note that the OSH Act expressly allows states to control occupational safety and health regulation

in certain circumstances. See 29 U.S.C. § 667. If OSHA approves a state occupational safety and health plan, which

requires, among other things, that the plan provide health and safety protection that is at least as adequate as the

protections provided by OSHA, see 29 U.S.C. § 667(c)(2), then the state plan requirements generally apply in place of

OSHA’s standards and regulations. 29 U.S.C. § 667(e).

147

29 U.S.C. § 655(b).

Congressional Research Service

Ebola: Selected Legal Issues

Act’s—and, thus, OSHA’s—jurisdiction148 must comply with these standards.149 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.”150 The General Duty Clause

generally requires employers to provide workplaces that are free of recognized hazards.151 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.152

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,153 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).154

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.155 Employers must review and update these plans at

least once per year.156 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.157 For example, these universal

precautions include having employees wash their hands with soap and water in certain

circumstances;158 properly dispose of used needles and other sharp medical equipment that has

come into contact with human blood;159 and refrain from eating, drinking, smoking, applying

148

The OSH Act expressly precludes its application to, and thus OSHA regulation of, certain employers. For example,

the OSH Act does not apply to employment performed outside of U.S. states and territories, see 29 U.S.C. § 653(a);

generally does not apply to federal, state, or local employment, see 29 U.S.C. § 652(5); and does not apply to selfemployed individuals, see id.

149

29 U.S.C. § 654(a)(2).

150

29 U.S.C. § 654(a)(1).

151

See 29 U.S.C. § 654(a)(1).

152

See 29 U.S.C. § 666.

153

“Ebola: Standards,” https://www.osha.gov/SLTC/ebola/standards.html (last visited November 18, 2014).

154

29 C.F.R. § 1910.1030(b).

155

29 C.F.R. § 1910.1030(c)(1)(i); 29 C.F.R. § 1910.1030(c)(1)(iii).

156

See 29 C.F.R. § 1910.1030(c)(1)(iv).

157

See 29 C.F.R. § 1910.1030(d)(1).

158

29 C.F.R. § 1910.1030(d)(2)(iii)-(vi).

159

See 29 C.F.R. § 1910.1030(d)(4)(iii)(A)(1).

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Ebola: Selected Legal Issues

cosmetics, or handling contact lenses in areas where they can reasonably expect to come into

contact with human blood.160 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.161 Appropriate protective equipment is

equipment that does not permit blood or other infectious materials to reach an employee’s person

or clothing.162 Employers must provide such equipment at no cost to employees.163

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.”164 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.165

Employers are then required to have affected employees use PPE that will protect against hazards

identified during the assessment.166 If PPE is required, the employer must generally provide such

equipment at no cost to its employees.167 However, there are exceptions wherein employees can

be required to purchase their own protective equipment.168

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.169 The Respiratory Protection standard requires, among other things, that employers

provide affected employees with respirators when appropriate;170 that covered employers develop

and implement a written respiratory protection program containing worksite-specific procedures

and requirements for employee respirator use;171 and the selection,172 fitting,173 usage,174 and

maintenance175 of appropriate respirators.

160

29 C.F.R. § 1910.1030(d)(2)(ix).

29 C.F.R. § 1910.1030(d)(3)(i). Protective equipment includes, e.g., “gloves, gowns, laboratory coats, face shields

or masks and eye protection, mouthpieces, resuscitation bags, pocket masks, or other ventilation devices.” Id.

162

Id.

163

Id.

164

29 C.F.R. § 1910.132(a).

165

29 C.F.R. § 1910.132(d)(1).

166

29 C.F.R. § 1910.132(d)(1)(i).

167

29 C.F.R. § 1819,132(h)(1).

168

See 29 C.F.R. § 1910.132(h)(2)-(h)(7).

169

“Ebola: Standards,” https://www.osha.gov/SLTC/ebola/standards.html (last visited November 11, 2014); OSHA,

“Cleaning and Decontamination of Ebola on Surfaces,” at 3 (2014), available at https://www.osha.gov/Publications/

OSHA_FS-3756.pdf.

170

See 29 C.F.R. § 1910.134(a)(2).

171

29 C.F.R. § 1910.134(c).

172

29 C.F.R. § 1910.134(d).

161

Congressional Research Service

Ebola: Selected Legal Issues

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.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

(...continued)

173

29 C.F.R. § 1910.134(f).

174

See 29 C.F.R. § 1910.134(g).

175

29 C.F.R. § 1910.134(h).

Congressional Research Service

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