Public Transit Emergency Preparedness Against Ebola and Other Infectious Diseases: Legal Issues (2017)

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47 an IDO. It is important to note that in any setting, infection control measures largely focus on proper hand washing, covering coughs/sneezes, and avoid- ing contact between the hands and face, particularly the eyes, nose, and mouth.501 1. Need for Transit Infection Control Policies and Protocols Transportation of all types carries not only passen- gers, but the potential to be turned into vectors of Ebola and other infectious diseases. In a 2011 study of one community, researchers reported an “increased linear relationship” between TB contraction and bus ridership—in commutes longer than an hour, “the increase in incidence of TB was reportedly eight times the baseline level.”502 Of course, disease transmission occurs at a higher rate anywhere people gather. In light of the volume and variety of social interactions that occur in these settings, particularly transporta- tion, clear guidance with high compliance rates will help minimize the risk of disease transmission among employees and passengers. OSHA governs how all toxic and hazardous substances, including bloodborne pathogens, should be handled in the workplace.503 As a general rule, “universal precautions shall be observed to prevent contact with blood or other potentially infectious materials. Under circumstances in which differentia- tion between body fluid types is difficult or impossible, all body fluids shall be considered potentially infec- tious materials.”504 Thus, all states should have trans- portation protocols for handling bodily fluids and/or potentially infectious materials. However, during an IDO, such events may not be isolated events, making widespread infection control measures critical. 2. Personal Protective Equipment Personal protective equipment (PPE) is the main component of employee safety. Defined as “the specialized clothing or equipment worn [ … ] for protection against infectious materials,” PPE includes, but is not limited to, “gloves, gowns, labora- tory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, [and] other ventilation devices.”505 Generally, worker absenteeism jeopardizes the management of day-to-day operations, can cause inconvenience to riders, and disrupt revenue streams. In the context of PHEs, the consequences of worker attrition are gravely magnified because of the critical role transportation plays in emergency response. Successful PHE planning will require the develop- ment of policies that are effective against absentee- ism and the impact of absenteeism, yet consistent with the civil rights and liberties of employees. VIII. INFECTION CONTROL AND DISINFECTION MEASURES A. Definition of Infection Control and Disinfection Measures The transportation sector will be crucial to health authorities in response efforts to control and contain the disease through infection control and disinfec- tion measures for common carriers. Generally, infection control refers to practices and precautions that can be taken to minimize the risk of disease transmission.498 Disinfection, in turn, is used to refer to the methods of “clean[ing], disinfect[ing], and steriliz[ing]” environments that have been exposed to infectious agents.499 Both will be critical; the following section will discuss methods of infec- tion control and disinfection available to transporta- tion agencies for use during a PHE or an IDO. B. Infection Control During a declared state of emergency, governors may possess authority over the operations of trans- portation, including transportation agencies.500 However, although many states have codified this broad grant of general authority over transportation agencies, there is a dearth of law as to the specific infection control measures that transportation should adopt should their services be used during 498 See Infection Control and Prevention, wIscOnsIn deParTmenT Of heaLTh servIces (Feb. 23, 2016), https:// www.dhs.wisconsin.gov/ic/precautions.htm (Infection con- trol is defined as “practices used to prevent transmission of diseases that can be acquired by contact with blood, body fluids, non-intact skin (including rashes), and mucous membranes.”). 499 cenTers fOr dIsease cOnTrOL and PrevenTIOn, Guideline for Disinfection and Sterilization in Health- care Facilities (2008). 500 See, e.g., va. cOde ann. § 44-146.17 (conferring to the governor power over modes of transportation as necessary to “implement emergency mitigation”). See also mIss. cOde ann. § 33-15-11 (granting general authority to “perform and exercise such . . . functions, powers and duties as may be necessary to promote and secure the safety and protection of the civilian population). See also ga. cOde ann., § 38-3-51. 501 See generally cenTers fOr dIsease cOnTrOL and PrevenTIOn, cOver yOur cOugh, available at http://www. cdc.gov/flu/protect/covercough.htm. 502 Marsha L. Feske, Larry D. Teeter, James M. Musser, & Edward A. Graviss, Including the Third Dimension: A Spatial Analysis of TB Cases in Houston Harris County, 91 TubercuLOsIs 24 (2011). 503 Occupational Safety and Health Standards Act, 29 C.F.R § 1910 (1970). 504 Id. 505 Id.

48 contact between contaminated areas of PPE (areas that have been in contact with infected surfaces or body sites) and clean areas of PPE (primarily, the insides, back, and ties of equipment).510 To avoid tears and altered fits, personal items and jewelry such as watches, cell phones, and pagers must be removed prior to wearing PPE.511 Transit agencies have developed policies for infec- tion control; some are quite comprehensive. New York City Transit Authority (NYCT), which has an annual ridership of 1.763 billion passengers, has one of the nation’s most robust infection control plans for a transit agency.512 Issued October 22, 2014, the MTA NYCT Infection Control Manual provides managers, supervisors, employees, and contractors detailed procedures for controlling the spread of airborne and vector-borne pathogens513 in order to “prevent or minimize employee exposure to poten- tially infectious material in the workplace.”514 Along with prescribing requisite training to all staff members on the proper use of PPE, NYCT Manual 10.15.4 tasks managers and supervisors with ensuring that employees handling infectious materials are equipped with PPE at all times. According to the manual, hand-washing facilities must also be made readily available and accessible to employees.515 Antiseptic hand cleansers are an acceptable alternative in environments where hand- washing facilities are not possible.516 On a yearly basis, the NYCT reevaluates its safety protocols, and retrains when necessary.517 3. Infection Control Measures for Passengers The CDC provides no guidance for the use of PPE by the general public. However, observing OSHA stipulates when certain PPE is required. Key requirements include: • Gloves, when “it can be reasonably anticipat- ed that the employee may have hand contact with blood, other potentially infectious materials, mu- cous membranes, and nonintact skin.” • Masks, “in combination with eye protection devices, such as goggles or glasses with solid side shields, or chin-length face shields . . . whenever splashes, spray, spatter, or droplets of blood or oth- er potentially infectious materials may be gener- ated and eye, nose, or mouth contamination can be reasonably anticipated.” • Surgical caps, hoods, or boots, “in instances when gross contamination can reasonably be anticipated.”506 a) For Employees For effective infection control, transportation employees must be able to properly identify and use the various types of PPE. Many transit employees may already choose to use PPE on a regular basis, such as gloves or surgical masks during flu season. However, during an IDO or suspected IDO, PPE should be made available to transit employees that interface with the public. During the 2014 Ebola outbreak, the CDC published a guide on the use of PPE for disease control and prevention,507 recom- mending the following equipment, at a minimum, be made available to employees: • Sterile or unsterile gloves for the protection of hands. • Gowns and aprons for the protection of skin and/or apparel. • Masks and respirators to prevent entre of air- borne infectious agents from the respiratory tract. • Goggles for protection of the eyes. • Face shields for general coverage of the face, mouth, nose, and eyes.508 Additionally, PPE ideally should be worn prior to contact with infectious materials, work areas, or persons.509 It is important to take care to avoid 506 Id. 507 cenTers fOr dIsease cOnTrOL and PrevenTIOn, Guidance for the Selection and Use of Personal Protec- tive Equipment (PPE) in Healthcare Settings (2014), https://www.cdc.gov/HAI/pdfs/ppe/PPEslides6-29-04.pdf. Although the publication is geared towards healthcare workers, much of its information is applicable, and should be considered, in the transportation setting. Transit agencies should consider an exercise or drill to test the feasibility of safely wearing all of the listed PPE while operating a vehicle. 508 Id. See generally Section 9C, “Doffing PPE, PAPR Option.” 509 Id. See generally Section 2, “Principles of PPE.” 510 Id. 511 Id. PPE should be visually inspected before use to “ensure it is in serviceable condition.” Id. 512 subways, web.mTa.InfO, http://web.mta.info/nyct/facts/ ffsubway.htm (last visited Sept. 16, 2016). NYC Transit ranks 7th among the world’s subway systems for highest annual subway ridership. Id. 513 New York City Transit Infection Control Manual (Policy Instruction 10.15.4), TwuLOcaL100.Org (OCT. 22, 2014), http://www.twulocal100.org/sites/twulocal100.org/ files/nycta_bloodborne_pathogens_exposure_program.pdf. 514 Id. 515 Id. 516 Id. 517 Id. The NYCT also have procedures in place for establishing and operating Points of Dispensing (PoDs). The NYCT’s Division of Occupational Health Services is in charge of examining employees who may have come in contact with harmful pathogens, and making recommen- dations for their treatment. With approval from the NYC or NYS Department of Health, the NYCT is authorized to set up PoDs—locations where employees will be pro- vided with antibiotics and vaccinations during a public health emergency.

49 running as normal. Social distancing requires employees to modify established behaviors;523 furthermore, telecommuting may not be feasible for many transportation employees, such as those who interact with the public. D. Monitoring and Tracking During an IDO or potential IDO, transit agencies may be called upon to coordinate with public health officials to help monitor for potentially infected employees or passengers. All states have statutes or regulations in place that mandate certain sectors to report suspected cases of infection. These are typically health professionals. For example, California requires “every health care provider, knowing of or in attendance on a case or suspected case of [reportable] diseases or conditions” to report the disease to the local health officer.524 However, schools, pharmacists,525 lodging facilities, and hospitals usually carry the same responsibility of reporting individuals on the premises who exhibit symptoms of a communicable disease.526 In the event of an IDO, public transportation employees—specifically, those who interact directly with the public—may be in the best position to report potential cases of affected individuals. Federal regulations governing the reporting duties of pilots are invaluable for the early detection of diseases and the minimization of transmission risks. During an IDO, such statutes may serve as a useful model for other transit sectors. Under the Code of Federal Regulations, airlines may prevent individuals who pose a direct threat to the health and safety of others from boarding.527 The basic hygienic practices is one of the best methods of infection control, and “many studies have reported an association between improvements in hand hygiene and reductions in rates of infectious illnesses in the community.”518 While boarding and riding public transportation, passengers should be encouraged to: • Wash hands frequently and thoroughly. • Cover coughs with the upper sleeve or the bend of the elbow to avoid contamination of the hands. • Sneeze into disposable tissues to catch mucus and other nasal secretions. • Avoid contact between the hands and facial orifices such as the eyes, nose, and mouth.519 Passengers who become ill while on board should be isolated from the rest of the passengers as much as possible. Some transit agencies are also experi- menting with new technologies to minimize the chances of transmission among passengers. For example, in 2012, Houston METRO experimented with a device called FluProof, which works to continuously filter airborne pathogens that could lead to TB, flu, and pneumonia. Filtering at a rate of 99%, the device uses ultraviolet irradiation tech- nology to sterilize bus compartments of harmful viruses, bacteria, and molds.520 C. Social Distancing Social distancing is defined as minimizing the “frequency, proximity, and duration of contact between people” to reduce the likelihood of trans- mitting an infectious disease from person-to- person.521 As an infection control measure, social distancing is a cost effective and relatively easy strategy to employ and can feature staggering employee work breaks, promoting telecommunica- tions in lieu of face-to-face meetings, encouraging ill employees to remain at home, and limiting physical contact such as handshakes and embraces.522 However, social distancing for transportation may not be practicable, particularly if services are 518 Allison A. Aiello, Effect of Hand Hygiene on Infectious Disease Risk in the Community Setting: A Meta-Analysis, 98 am. J. Pub. heaLTh 1372 (2008). 519 See generally cenTers fOr dIsease cOnTrOL and PrevenTIOn, cOver yOur cOugh, available at http://www. cdc.gov/flu/protect/covercough.htm. 520 Mike Williams, CityBusters Battle Illness on Public Transit, rIce u. news, April 26, 2012, http://news.rice. edu/2012/04/26/citybusters-battle-illness-on-public- transit-2/. 521 unITed sTaTes deParTmenT Of LabOr, guIdance On PreParIng wOrKPLaces fOr an InfLuenza PandemIc, OSHA 3327-02N (2007). 522 Id. 523 Id. 524 caL. cOde regs. tit. 17 § 2500(b) (2016). See also md heaLTh–gen. cOde § 18-202 (2013) (requiring physicians in Maryland “with reason to suspect that a patient under the physician’s care has a condition or an infectious or contagious disease” to “submit immediately a report to the health officer for the county where the physician cares for that patient.”). 525 See also Tex. heaLTh & safeTy cOde § 81.042 (requir- ing school authorities to report any “child attending school who is suspected of having a reportable disease”). See also Or. rev. sTaT. § 433.443 (requiring the report of animal test results by veterinary laboratories); see also ga. ann. § 31-12-2 (requiring pharmacists to report to the county board of health “unusual or increased prescription rates, unusual types of prescriptions, or unusual trends in phar- macy visits that may reasonably be believed to be caused by bioterrorism, epidemic or pandemic disease”). 526 N.Y. cOmP. cOdes r. & regs. tit. 10 § 2.12 (specify- ing the duty of any persons “in charge of any institution, school, hotel, boarding house, camp or vessel” to report knowledge of individuals possible affected with a com- municable disease). 527 Id. (citing 14 C.F.R. pt. 382).

50 Oregon’s Revised Statutes vests “final jurisdiction” in the Public Health Director. 534 2. At the State Level A state’s health department, and specifically, the health official, has extensive authority over direct- ing local health officers and implementing protocols for infection control. For example, Texas’ state code broadly declares the executive health commissioner to have “general supervision and control over all matters relating to the health of the citizens of this state.”535 These expansive powers include the right to enter and inspect any vessel, building, or aircraft; the ability to order a contaminated person’s prop- erty destroyed; and power to place individuals under isolation and quarantine.536 Health authorities in Texas are also permitted to impede, halt, or redirect a common carrier’s route should the health depart- ment have “reasonable cause to believe” that a person onboard the carrier has been exposed to or is ill with a communicable disease.537 Texas’ infection control measures are closely analo- gous to those in place in other states,538 reflecting the need for flexibility in disease control and prevention. 3. At the Federal Level As the operational head of the U.S. Public Health Service Commissioned Corps (PHSCC), the Surgeon General and the federal government carries the enormous duty of protecting the nation’s borders from the introduction and transmission of commu- nicable diseases, as well as individual state borders from interstate transmissions. The Director of the CDC is vested with discretion over state responses,539 should the Director deem any state protocols to be inadequate. He or she may “take such measures to prevent such spread of the diseases as he/she deems reasonably necessary.”540 These measures may include infection control measures. Additionally, during IDOs, the CDC releases Interim Guidance for states and specific industries that may include information about the disease, symptoms, transmission routes, and recommended Code also enables airlines to delay travel, require the presentation of medical certificates, and impose any other restrictions they may deem fit.528 Upon landing, procedures are in place for onsite screening, evaluation, treatment, and transport if necessary.529 CDC regulations also require pilots to immediately report “a suspected case of contagious disease among passengers or crew members before arrival to the local health authority.”530 E. Interagency Coordination Although public health response is usually a local or state matter, during an IDO, federal, state, and local agencies will need to work together to help address and respond to the outbreak. Monitoring and tracking potentially infected individuals is a time- and resource-intensive endeavor. Consequently, when considering the broad expanse of activities involved, coordinated information, resource, and personnel is imperative for successful outbreak prevention, miti- gation, and response. 1. At the Local Level Local health officers play an essential role in disease containment. They are responsible for moni- toring disease reports of physicians, pharmacists, and other medical personnel in their jurisdiction. The particular powers afforded to local health offi- cers vary from state to state, but generally local health officers are empowered to take measures to protect the public health.531 In Oregon, local public health administrators are afforded wide latitude to implement measures for infection control.532 Along with the state Public Health Director—as long as the measure prescribed is the “least restrictive alter- native available”—local health officers have the authority to compel a person to undergo medical observation, testing, and treatment.533 Should a dispute arise concerning the nature of an emergency, 528 Id. (citing 14 C.F.R. pt. 382). 529 Id. at 11 (citing 42 C.F.R. § 71.21(b)). 530 42 C.F.R. § 70.4. This requirement is applicable to both flights within the United States and international flights arriving in the United States. 42. C.F.R. § 71.21(b); see also 42 C.F.R. § 70.5 (proscribing a parallel rule of man- datory reporting more generally on “the operator of any conveyance engaged in interstate traffic”). 531 See, e.g., mIss. cOde ann. § 33-15-49 (permitting local public employees to venture onto private property to “perform any . . . necessary and needed services to prevent the spread of disease or any other health hazard to the community at large”); Compare with rev. cOde wash. § 70.05.070 (granting broad authority to local health offi- cers to “take such measures as he or she deems necessary in order to promote the public health”). 532 Or. rev. sTaTe. § 433.035. 533 Id. 534 Id. 535 Tex. heaLTh & safeTy cOde § 12.001. 536 Id. 537 Id. 538 See, e.g., wyO. sTaT. ann. § 35-4-103 (conferring to health officers the authority to “control the population of the city, town or other places as in his judgment best pro- tects the people and at the same time prevents the spread of the disease”). See also Id. cOde ann. § 39-414 (granting district boards of health the power to “do all things required for the preservation and protection of the public health and preventive health”). 539 42 C.F.R. pt. 70. 540 42 C.F.R. pt. 70.2.

51 carriers still lacked clear directions on how to prop- erly disinfect passenger areas. Furthermore, although common disinfection measures will likely apply during any IDO, specific details can vary greatly. For example, measures for disinfecting for influenza focus on nonporous surfaces, but Ebola disinfection measures focus on porous surfaces. Effective disinfecting solutions will vary as well, based on the disease. The following sections discuss available disinfection guidance for transportation agencies, focusing first on airplanes before moving to other forms of transportation. 1. Airplanes Although the majority of transportation takes place on the ground, airplanes—because of their transconti- nental abilities to transmit disease—have more read- ily available guidance for proper disinfection measures that can be applied to other modes of transit. a) Centers for Disease Control and Prevention The CDC has released both general guides for preventing disease spread as well as specific interim guidance for disinfection measures specific to disease outbreaks.548 CDC recommendations may depend on the symptoms exhibited by the passenger. For exam- ple, with Ebola, the CDC recommended only routine cleaning and laundering in instances in which passengers exhibited symptoms consistent with Ebola but no “gastrointestinal or hemorrhagic symp- toms.”549 However, at the excretion of bodily fluids such as diarrhea, blood, and vomit, the crew will need to don PPE before attempting to clean and disinfect contaminated surfaces.550 For all laboratory- confirmed cases of Ebola, the CDC stipulates imme- diate removal of the aircraft from service.551 Public health authorities will then aid in identification of a qualified contract company for disinfection.552 infection control protocols.541 OSHA may also release information and recommended practices for worker safety during a particular disease outbreak.542 The federal government relies heavily on local health authorities to prevent the introduction of infectious diseases between states. Conductors of any vessel that partakes in interstate travel are required to report suspected exposure incidents to local health authorities at the next immediate port, station, or stop.543 Moreover, certain diseases includ- ing cholera, plague, smallpox, typhus, and yellow fever require persons moving from state to state to obtain a written permit from the Surgeon General.544 Operators of interstate vessels are prohibited under federal law from knowingly transporting any person not in possession of a permit.545 The formulation of this permit system is important as an example of how government entities can balance competing interests in public health and personal liberties. Under the permit system, individuals in the commu- nicable phase of a disease are not entirely stripped of their mobility,546 whereas the government main- tains a means of monitoring persons of interest. Moreover, the statute puts transportation agencies on notice of at least one of the responsibilities they will have in the event of an outbreak. F. Disinfection Measures During a PHE or IDO, disinfection measures are critical for common carriers. During the U.S. Ebola outbreak, transit agencies were initially met with a dearth of guidance on proper disinfection measures. Although interim guidance was released,547 common 541 E.g., during the 2003 outbreak of Severe Acute Respi- ratory Syndrome, the CDC issued comprehensive guidance on infection control for SARS in a number of settings. CDC, PubLIc heaLTh guIdance fOr cOmmunITy-LeveL PrePared- ness and resPOnse TO severe acuTe resPIraTOry syndrOme (sars), suPPLemenT I, InfecTIOn cOnTrOL In heaLThcare, hOme, and cOmmunITy seTTIngs (last updated 2005). 542 See, e.g., OSHA, OSHA facT sheeT, cLeanIng and decOnTamInaTIOn Of ebOLa On surfaces, (2014), https:// www.osha.gov/Publications/OSHA_FS-3756.pdf. 543 42 C.F.R, pt. 70.4. 544 42 C.F.R, pt. 70.5. 545 Id. 546 Id. In considering the authorization of a requested per- mit, the Surgeon General weighs “the risk of introduction, transmission, or spread of the disease from one State or pos- session to another” against the availability of precautionary measures. Id. 547 See, e.g., OSHA facT sheeT, cLeanIng and decOnTam- InaTIOn Of ebOLa On surfaces, OSHA, (2014), https://www. osha.gov/Publications/OSHA_FS-3756.pdf. Most interim guidance was set in healthcare environments and focused on infection control in the hospital setting and hospital preparedness for patients with Ebola. See, e.g., cenTers fOr dIsease cOnTrOL and PrevenTIOn, cLeanIng and dIsIn- fecTIng heaLThcare envIrOnmenTs (2015). 548 See, e.g., cenTers fOr dIsease cOnTrOL and PrevenTIOn, PrevenTIng sPread Of dIsease On cOmmercIaL aIrcrafT: guIdance fOr cabIn crew (2016); cenTers fOr dIsease cOnTrOL and PrevenTIOn, InTerIm guIdance abOuT ebOLa vIrus cLeanIng, dIsInfecTIOn, and wasTe dIsPOsaL In cOm- mercIaL Passenger aIrcrafT (2016); cdc, PubLIc heaLTh guIdance fOr cOmmunITy-LeveL PreParedness and resPOnse TO severe acuTe resPIraTOry syndrOme (sars), suPPLemenT I, InfecTIOn cOnTrOL In heaLThcare, hOme, and cOmmunITy seTTIngs (2001). 549 cenTers fOr dIsease cOnTrOL and PrevenTIOn, InTerIm guIdance abOuT ebOLa vIrus cLeanIng, dIsInfecTIOn, and wasTe dIsPOsaL In cOmmercIaL Passenger aIrcrafT (2016). Contamination of the environment is unlikely in the absence of “wet symptoms” such as “diarrhea, vomiting, and/or bleeding.” Id. 550 Id. 551 Id. 552 Id. Even in laboratory-confirmed cases, “only areas that were contaminated with diarrhea, vomit, blood, and/ or other body fluids” will require disinfection. Id.

52 manufacturers at recommended concentrations and contact times” and cleaning from “the top (light and air controls) and proceed[ing] downward progres- sively working from clean to dirty areas.”560 The guide- lines stress the importance of not using compressed air, as it might “re-aerosolize infectious material.”561 Together with the CDC materials, the IATA guide provides factually consistent information for the midflight identification of communicable diseases, and postflight disinfection of potentially contami- nated surfaces. As previously noted, the issued guidelines are broad, and may be easily adapted to other transit environments. 2. Public Transportation (Buses, Rail, Subway) Although transit has general disinfection protocols in place, as part of the process of emergency planning, transportation agencies should reevaluate the appro- priateness of their cleaning procedures in the context of an IDO. For example, many buses are routinely swept of debris that collects during the day.562 However, sweeping should be avoided in contaminated environ- ments because it may spread areas of contamination and recirculate pathogenic microorganisms that cause the spread of diseases.563 In addition, transit agencies that currently do not mandate thorough sanitization of handrails, fare boxes, and windows will need to inte- grate these practices into their cleaning procedures.564 Some transit agencies are also replacing seats for easier-to-disinfect materials. Sacramento Regional Transit has begun “eliminating old cloth seats in In general, the CDC recommends isolating ill passengers and cleaning contaminated surfaces to the extent possible while in transit, using PPE and proper disposal procedures for biohazardous materi- als.553 Once passengers have deboarded, cleaning crews should be notified of the need for additional disinfection measures consistent with the suspected or confirmed disease; cleaning crews should be noti- fied to wear PPE as well. This approach to disinfection focuses on the specific symptoms exhibited, but the type of mate- rial contaminated will be relevant for transit agen- cies. For instance, disinfection procedures for common carriers will differ depending on whether the seats are cushioned and fabric-covered or hard and plastic.554 Soft, porous surfaces such as carpet or seat coverings will usually need to be soaked for longer periods of time in disinfectant than nonpo- rous, hard surfaces.555 b) The International Air Transport Association (IATA) The International Air Transport Association (IATA) also provides instructional guidance on general disinfection procedures.556 Activation of emergency protocol is predicated upon the ability of crewmembers to recognize the symptoms associated with a communicable disease.557 After all attempts to procure medical assistance have been made, the IATA recommends isolating the ill passenger as much as possible—by relocating fellow passengers and providing the ill passenger with a facemask if available.558 It is essential that all items touched or used by the passenger are placed into a sealed and labeled bag for proper disposal.559 The IATA recommends “only using agents and disinfectants that have been approved by aircraft 553 cenTers fOr dIsease cOnTrOL and PrevenTIOn, PrevenTIng sPread Of dIsease On cOmmercIaL aIrcrafT: guIdance fOr cabIn crew (2016). 554 See cenTers fOr dIsease cOnTrOL and PrevenTIOn, InTerIm guIdance abOuT ebOLa vIrus cLeanIng, dIsInfec- TIOn, and wasTe dIsPOsaL In cOmmercIaL Passenger aIr- crafT (2016). 555 Id. 556 Suspected Communicable Disease: Guidelines for Cabin Crew, InTernaTIOnaL aIr TransPOrT assOcIaTIOn, (Mar. 2015), http://www.capsca.org/Documentation/Zika/ IATA-health-guidelines-cabin-crew-2011.pdf. 557 Id. Symptoms include “appearing obviously unwell, persistent coughing, impaired breathing, persistent diar- rhea, persistent vomiting, skin rash, bruising or bleeding without previous injury, and confusion of recent onset.” Id. 558 Id. Alternatively, if the ill passenger cannot or refuses to wear a facemask, efforts should be made to provide those in the nearby vicinity with masks. Id. 559 Id. 560 Id. Consistent with CDC recommendations, the IATA proscribes disinfection only for areas that have been “soiled by bodily fluids.” Id. 561 Id. Reaerosolization refers to the “reintroduction of previously airborne particles into the atmosphere.” See Julie A. Layshock, Brooke Pearson, Kathryn Crockett, Michael J. Brown, Sheila Van Cuyk, W. Brent Daniel, & Kristin M. Omloerg, Reaerosolization of Bacillus spp. in Outdoor Environments: A Review of the Experimental Literature, 10 bIOsecur bIOTerrOr at 299, (Sept. 2012). 562 Jon Hilkevitch, CTA Revs Up its Bus Cleaning, chIc. TrIb., Jun. 17, 2013, (describing the “first order of business” as “sweep[ing] out mounds of debris: an amalgam that includes food scraps, plastic bottles, newspapers, an occasional hypodermic syringe, splotch of blood or human waste”). 563 Suspected Communicable Disease: Guidelines for Cabin Crew, InTernaTIOnaL aIr TransPOrT assOcIaTIOn, (Mar. 2015), http://www.capsca.org/Documentation/Zika/ IATA-health-guidelines-cabin-crew-2011.pdf. 564 See Brittany Wallman, Broward Buses Will Get ‘Deep Cleaning’, sun senTIneL, Jul. 5, 2015, http://www. sun-sentinel.com/local/broward/fl-broward-dirty-buses- 20150705-story.html (“Broward Transportation Director Chris Walton said the roughly 330 buses already are swept clean each night, but he didn’t have the money to step up the sanitizing.”).

53 employer intrusions will be subjected to a totality of the circumstances, reasonableness test.572 2. Need for Policies that Respect the Civil Liberties of Passengers The public also has a tremendous stake in the legality of infection control and disinfection measures. The language of Pennsylvania’s statute is representative of the broad powers given to local health authorities and the state Department of Health to “determine and employ the most efficient and practical means for the prevention and suppres- sion of disease.”573 In most states, persons suspected of infection are required to submit to a medical examination.574 Nonetheless, the authorities conferred to a state health department do not imme- diately apply to transportation. During an IDO, however, certain actions, such as isolating a poten- tially ill passenger, will likely be necessary. 3. Importance of Containing Disease Spread The duty of U.S. transportation agencies to prevent the spread of infectious disease is a duty owed not only to Americans, but to the larger inter- national community as well. Under Article 17 of the Montreal Convention, air carriers are “liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”575 During a PHE, behaviors that may expose a carrier to liability light-rail trains, replacing them with easier-to-clean vinyl.”565 Such measures will facilitate seat cleaning and disinfection should they become contaminated.566 Finally, employees who perform detailed clean- ings should undergo specific training for disinfection measures during an IDO.567 For transit agencies that outsource their cleaning to independent contractors, the CDC may be contacted for more information on locating a qualified contractor.568 G. Legal Issues with Infection Control and Disinfection Measures 1. Need for Policies that Respect the Civil Liberties of Employees During a PHE, employers should take care to avoid unwarranted intrusions on personal privacy rights. In instances where agencies are granted broad discretion to act in the best interests of safety and public health, employers must use their best judgment to determine the extent to which intru- sion on privacy rights is appropriate. However, there is precedence for employers to have significant over- sight over hygienic practices. For example, the Missouri Department of Health requires medical facilities to have procedures in place for monitoring employee compliance with safety protocols.569 Under the statute, a portion of the surveillance must be completed “in such a manner that employees and medical staff are observed without their knowledge of such observation.”570 During the Ebola 2014 outbreak, medical workers donned and doffed PPE with partners to ensure proper procedures were followed.571 Although there may be legal issues with monitoring employees when they otherwise have a reasonable expectation of privacy, the controlling case law on employee surveillance states that when employees have a “legitimate privacy interest,” 565 Tony Bizjak, New Buses, Seats to Help Give Sacra- mental Regional Transit a Cleaner Look, The sacramenTO bee, Apr. 4, 2015, http://www.sacbee.com/news/local/ transportation/article17419022.html. 566 See cenTers fOr dIsease cOnTrOL and PrevenTIOn, InTerIm guIdance abOuT ebOLa vIrus cLeanIng, dIsInfec- TIOn, and wasTe dIsPOsaL In cOmmercIaL Passenger aIr- crafT (2016). 567 See supra Part II (F)(1)(b). 568 See cenTers fOr dIsease cOnTrOL and PrevenTIOn, InTerIm guIdance abOuT ebOLa vIrus cLeanIng, dIsInfec- TIOn, and wasTe dIsPOsaL In cOmmercIaL Passenger aIr- crafT (2016). 569 mO. ann. sTaT. § 197.150. 570 Id. 571 Angela L. Hewlett, Jay B. Varkey, Phillip W. Smith, & Bruce S. Ribner, Ebola Virus Disease: Preparedness and Infection Control Lessons Learned from Two Biocontainment Units, 24 curr. OPIn. InfecT. dIs. 343 (Aug. 2015). 572 City of Ontario v. Quon, 560 U.S. 746, 757, 130 S. Ct. 2619, 2628, 177 L. Ed. 2d 216, 225 (2010) (describing the test as a case-by-case determination that considers the “operational realities of the workplace” as well as the rele- vance of the intrusion to “work-related purposes, as well as for investigations of work-related misconduct”). 573 28 Pa. cOde § 27.67; see also wash. rev. cOde 70.28.005 (“it is imperative that public health officials and their staff have the necessary authority and discretion to take actions as are necessary to protect the health and wel- fare of the public … nothing in this chapter shall be con- strued as in any way limited the broad powers of health officials to act as necessary to protect the public health”). 574 See e.g., Ks. sTaT. § 65-128 (“The secretary of health and environment is authorized to issue such orders and adopt rules and regulations as may be medically neces- sary and reasonable … including, but not limited to, pro- viding for the testing of such diseases … of persons afflicted with or exposed to such diseases”); see also nev. rev. sTaT. ann. § 441A.160 (“A health authority may order any person whom the health authority reasonably sus- pects has a communicable disease in an infectious state to submit to any medical examination or test.”). 575 Essential Documents on International Air Carrier Liability—Montreal Convention 1999, InTernaTIOnaL aIr TransPOrT assOcIaTIOn, http://www.iata.org/policy/ Documents/MC99_en.pdf.