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

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28 point of entry into the healthcare system for travel- ers with serious infectious diseases.”268 Although screening and prescreening measures are still implemented during respiratory illnesses,269 WHO, in subsequent respiratory outbreaks, has suggested that the more appropriate intervention should include communicating information to all air travel passengers about avoiding individuals infected with the specific illness, and where to obtain medical help at their destination.270 Some screening measures recommended at the POEs include: • Health advice and alerts for travelers. • Health declaration form/card. • Visual screening. • Temperature screening. • On-board identification of suspect travelers. • International travel advisory, restriction, and border closure.271 Following the SARS outbreak of 2003, similar proce- dures have been used for other outbreaks of diseases, such as Ebola in 2014. VI. QUARANTINE AND ISOLATION A. Introduction 1. Definition of Quarantine and Isolation Quarantine and isolation are two of the oldest methods of preventing the spread of disease. Although much more common prior to the advent of antibiotics and modern medicine, quarantine and isolation have been used more recently with emerg- ing infectious diseases (EIDs). EIDs are novel and many times little is known about them, and vaccines or other medicines do not exist to treat or prevent an EID’s spread. In a PHE, particularly one involving a new or novel strain of disease, quarantine and isola- tion will likely be invoked. Although often used together, “quarantine” and “isolation” have two distinct meanings. Both prevent exposure to people who have or may have a conta- gious disease, but the CDC defines the two in the following way: • Isolation separates sick people with a conta- gious disease from people who are not sick. • Quarantine separates and restricts the move- ment of people who were exposed to a contagious disease to see if they become sick.272 In addition, although modern quarantine and isola- tion policies typically address people, it is possible for a specific area to be quarantined or isolated. In transportation, quarantine and isolation may affect the ability of carriers to access normal areas or routes (if a particular area is quarantined). Trans- portation workers who interface with the public, such as drivers, may be asked to pay attention to riders who may exhibit signs of illness, and there- fore need to be quarantined or isolated.273 Finally, if a person has exposed passengers to a disease of concern, all riders on that carrier (including the driver) may be subject to quarantine and isolation. B. State Powers to Quarantine and Isolate State powers to quarantine and isolate have been well-established. The police powers, reserved for states in the Tenth Amendment,274 give states broad powers to protect the health, welfare, and safety of its citizens. This right was famously upheld in Jacob- son v. Massachusetts,275 a case in which a Massachu- setts resident contested the right of the state to statutorily compel smallpox vaccination.276 Further- more, the rights of states to quarantine specifically have been upheld, even prior to Jacobson. In Campagnie Francaise de Navigation A Vapeur v. Louisiana State Board of Health,277 the Supreme Court upheld the Louisiana State Board of Health’s right to quarantine seven parishes during an unspec- ified epidemic,278 stating that “from an early day the power of the states to enact and enforce quarantine 268 Id. at 9. 269 In 2009, the Western Pacific Regional Office of WHO issued screening and prescreening guidelines for H1N1, but noted that airports should first assess risk before implementing such time-intensive measures. World Health Organization, Regional Office for the Western Pacific, Responding to New Influenza A(H1N1): Options for Interventions at International Points of Entry at 6, 20 (May 20, 2009), http://www.wpro.who.int/emerging_ diseases/OptionsforBorderandTravelMeasure20090530 final_2.pdf. 270 Id. at 9. 271 Id. The restriction or closure of international borders is the last resort of screening procedures and is generally not recommended by WHO. 272 Centers for Disease Control, Quarantine and Isolation, https://www.cdc.gov/quarantine/index.html (last visited Jun. 23, 2016). 273 Airplane pilots and ship captains, for example, are required to immediately report when passengers exhibit signs of illness. 42 C.F.R. § 71.21 (2016). Although other forms of transit are not specified, in an IDO, such a request may be made of transit workers as well. 274 U.S. cOnsT. art. X. The text of the Tenth Amendment states that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” 275 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905). 276 Id. at 22–26. 277 186 U.S. 380, 20 S. Ct. 811, 46 L. Ed. 1209 (1902). 278 Id.

29 laws for the safety and the protection of the health of their inhabitants” was “beyond question.”279 In addition to states’ constitutional powers, all states have developed statutes that outline more explicitly the powers of specific actors to quarantine and isolate, as well as procedures for doing so.280 These actors typically include state governors, state health officials, local health officers or local boards of health. Each of these is discussed below. 1. Governors’ Powers Governors are often granted quite broad powers when acting during a declared state of emergency, declared catastrophic health emergency, or declared health emergency. In general, states do not specify a governor’s right to quarantine and isolate; however, many statutes include language that cites the abil- ity of the governor to have the health secretary or state health agency implement quarantine and isolation orders. For example, Georgia code states that “The Governor may direct the Department of Public Health to coordinate all matters pertaining to the response of the [ … ] public health emergency,” including a quarantine and isolation program.281 Furthermore, most states tie the ability to quaran- tine and isolate with a declared state of emergency, declared catastrophic health emergency, or declared health emergency—a power that in almost all states rests solely with the governor.282 Virginia, for exam- ple, states that “No affected area shall be the subject to an order of quarantine issued by the State Health Official unless the Governor, ... has declared a state of emergency for such affected area ....”283 However, in some states, if a governor has strong grounds to believe that there is a danger of a malignant and contagious disease being introduced into the state, governors are vested with the right to “quarantine vessels,” entering state waters.284 They may also “prohibit or restrict contact between the state and the place affected by the disease.”285 Furthermore, as discussed elsewhere, most states do grant governors emergency powers to control ingress and egress to specific areas, and to close places of businesses or public gatherings.286 These powers could be used to quarantine and isolate, if necessary. Finally, most states grant governors the right to suspend laws or regulations during a declared emergency or PHE to respond to the emergency and protect life and safety.287 These provisions may all allow for a nontraditional exercise of power to quar- antine and isolate in a declared state of emergency. 2. State Health Official Powers288 State health officials have statutorily broad powers to protect the health and safety of citizens. Health officials get their powers from statutory provisions, which are often expressed as a “duty” of the office.289 Indeed, even without a declared state of emergency or declared state of public health emer- gency, in most states a state health official or desig- nee is able to enter premises and inspect private property when there is a legitimate health-related reason for doing so.290 They may also be granted 284 md. cOde ann., heaLTh–gen. § 18.212.1 (2016). 285 Id. 286 See Chapter 3. 287 For example, La. rev. sTaT. § 29:766(D) (“During a state of public health emergency, in addition to any pow- ers conferred upon the governor by law, he may do any or all of the following: (1) Suspend the provisions of any regu- latory statute prescribing procedures for the conducting of state business, or the orders, rules, or regulations of any state agency, if strict compliance with the provisions of any statute, order, rule, or regulation would in any way prevent, hinder, or delay necessary action in coping with the emergency.”) See also S.C. cOde ann. § 25-1-440 (2016). 288 Nomenclature for the executive state health official may vary (most commonly, Secretary of Health or State Health Commissioner). Unless referring to a specific stat- ute, this report will refer to all State Health Department Agency Heads as the State Health Official. 289 See OhIO rev. cOde ann. § 3701.03 (2016); OhIO rev. cOde ann. § 3701.14(A) (2016) (“The director of health shall investigate or make inquiry as to the cause of dis- ease or illness, including contagious, infectious, epidemic, pandemic, or endemic conditions, and take prompt action to control and suppress it.”). 290 See La. sTaT. ann. 40:8(A) (2016) (“The state health officer shall [ … ] investigate any circumstances which he has determined pose a threat or reasonable expectation of a threat to the public health.”) See also N.Y. cOmP. cOdes r. & regs. tit. 10, § 1.11 (2016) (“No person shall interfere with or obstruct the entrance to any house, building, ves- sel, or other premises by the State Commissioner of Health, [ … ] in the discharge of his official duties.”). 279 Id. at 387. 280 Approximately 40 states have provisions that are in part based on the Model State Emergency Health Powers Act, which was drafted in 2001 to provide states with a model to address modern public health emergencies. Model State Emergency Health Powers Act (2001), available at https://www.aclu.org/sites/default/files/FilesPDFs/ msehpa2.pdf (last visited Sept. 1, 2016). For additional dis- cussion on the MSEHPA, see Mark A. Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Mod- ern Quarantine, 12 Ind. heaLTh L. rev. 227, 239–242 (2015). 281 ga. cOde ann., § 38-3-51 (2016). 282 See, e.g., va. cOde ann. § 32.1-48.09 (2016); cOnn. gen. sTaT. § 19(a) (2016) (“if the Governor has declared a public health emergency, the commissioner, if so authorized by the Governor pursuant to section 19a-131a, may order into quar- antine or isolation, as appropriate, any individual, group of individuals or individuals present within a geographic area”); md. cOde ann., Pub. safeTy, § 14-3A-02 (2016) (“If the Gover- nor determines that a catastrophic health emergency exists, the Governor may issue a proclamation” that authorizes the Secretary of Health to “require individuals to go to and remain in places of isolation or quarantine.”). 283 va. cOde ann. § 32.1-48.09 (2016).

30 the ability of state health officials to inspect carriers and take appropriate action. For example, West Virginia states that the state director of health shall have power to enter into any town, city, factory, railroad train, steamboat or other place whatsoever, and enter upon and inspect private property for the purpose of investigating the sanitary and hygienic condi- tions and the presence of cases of infectious diseases, and may, at his discretion, take charge of any epidemic or endemic conditions, and enforce such regulations as the state board of health may prescribe. All expenses incurred in controlling any endemic or epidemic conditions shall be paid by the county or municipality in which such epidemic occurs.296 Although quarantine and isolation procedures do not always specify transportation-specific procedures, a few states, such as Louisiana, Texas, and Oregon, have additional provisions for state health officials facing suspected communicable diseases in passen- gers on common carriers. Oregon, for example, states that if a communicable disease is found among passen- gers that “presents a substantial threat to public health” on “any public or private conveyance,” the Public Health Director may “isolate or quarantine such persons” as needed.297 Furthermore, “should any question arise as to the existence of any emergency, the Public Health Director shall have final jurisdic- tion.”298 Minnesota allows its health official, when necessary, to “establish and enforce a system of quar- antine against the introduction into the state of any plague or other communicable disease by common carriers doing business across its borders.”299 In carry- ing out this duty, the Commissioner or its designees may “board any conveyance used by such carriers to inspect the same and, if such conveyance be found infected, may detain the same and isolate and quaran- tine any or all persons found thereon, with their luggage, until all danger of communication of disease therefrom is removed.”300 Similarly, Louisiana recog- nizes the authority of the state health officer to exam- ine suspected or known cases of communicable diseases, specifying that “[n]o person shall interfere with or prevent entrance to or examination of any ... train, airplane, bus, steamship, or other water craft,” where the disease is suspected.301 3. Local Health Official Powers Local health officials or county boards, be they county or municipal, have analogous powers to state health officials, including the same duty to protect the health and safety of citizens. Similarly, they may broader authority during a declared emergency by the governor.291 In all states, the ability to quarantine and isolate resides in this position and agency.292 In many states, state health officials may seek quarantine and isola- tion orders even when there is no declared emer- gency or PHE. For example, Ohio’s statute states: The department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quar- antine and isolation, which it may declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established.293 Some states circumscribe a state health official’s ability to establish quarantine and isolation, stating that a state health official, “if the Governor has declared a public health emergency [, … ]” and “if so authorized by the Governor [, …] may order [indi- viduals or groups] into quarantine and isolation.”294 In addition, state health officials are often vested with the power to quarantine and isolate as an addi- tional measure if a person refuses certain health- related responses, such as testing for certain diseases or treatment for certain diseases.295 a) Quarantine and Isolation of Carriers As one of the oldest forms of public health measures, quarantine and isolation of vessels and carriers has been well established. This power usually rests with the state health official and state public health agency. These are often specific to “vessels,” or ships. However, some states also specify 291 For example, ga. cOde ann., § 38-3-51 (2016) (“The Governor may direct the Department of Community Health to coordinate all matters pertaining to the response of the state to a public health emergency including” quarantine and isolation.). 292 See, e.g., N.J. sTaT. ann. § 26:13-15 (2016) (“the [Health] Commissioner may […] issue and enforce orders for quarantine and isolation of individuals”); OhIO rev. cOde ann. § 3701.13 (2016); Me. rev. sTaT. ann. tit. 22 § 820 (2016) (“In the event of an actual or threatened epidemic or outbreak of a communicable or occupational disease, the department may declare that a health emergency exists and may adopt emergency rules for the protection of the public’s health relating to procedures for the isolation and placement of infected persons for purposes of care and treatment or infection persons which shall be subject to the supervision and regulations of the department.”). 293 OhIO rev. cOde ann. § 3701.13 (2016); see also 20 ILCS 2305/2 (2016) (“State Department of Public Health [. . . .] has supreme authority in matters of quarantine and isolation, and may declare and enforce quarantine and isolation when none exists”). 294 cOnn. gen. sTaT. ann. § 19a-131b. Many states statu- torily specify due process procedures as well. See deL. cOde ann. tit. 20 § 3136 (2016) (specifying quarantine and isolation procedures that “protect the due process rights of individuals”). 295 See deL. cOde ann. tit. 20 § 3136 (2016); md. cOde ann., Pub. safeTy, § 14-3A-04. 296 W. va. cOde ann. § 16-3-1 (2016). 297 Or. rev. sTaT. ann. § 433.220(1)(b) (2016). 298 Or. rev. sTaT. ann. § 433.220(2) (2016). 299 mInn. sTaT. ann. § 144.14 (2016). 300 Id. 301 La. admIn. cOde tit. 51, pt. II, § 115 (2016).

31 extend to transportation and transit authorities during quarantine and isolation efforts. In addition, a few states invest the state transportation official with the right, when they “determin[e] that the operations of a motor carrier of passengers pose a danger to public safety or the welfare of the people,” to “serve such motor carrier with a notice or order requiring certain action or the cessation of certain activities immediately or within a specified period[.]”307 In a PHE such a statute could be used to restrict or “quarantine” motor carriers. a) Texas “Control Measures” for Common and Private Carriers Texas has particularly specific instructions regard- ing “control measures” for private and common carri- ers, including “a vehicle, aircraft, or watercraft, while the vehicle or craft is in [the] state.”308 This includes the ability to order the “owner, operator, or authorized agent in control of the carrier” to stop; provide infor- mation on passengers, and details about any suspected illness or condition on board the carrier. In addition, if the carrier or individual is placed under quarantine, it “may not be removed from or leave the area of quarantine without the department’s or health authority’s permission.”309 Furthermore, (i) The department or health authority may require an indi- vidual transported by carrier or conveyance who the depart- ment or health authority has reasonable cause to believe has been exposed to or is the carrier of a communicable disease to be isolated from other travelers and to disembark with the individual’s personal effects and baggage at the first location equipped with adequate investigative and disease control facilities, whether the person is in transit through this state or to an intermediate or ultimate destination in this state. The department or health authority may investigate and, if necessary, isolate or involuntarily hospitalize the individual until the department or health authority approves the discharge as authorized by Section 81.083.310 This statute also demonstrates the extent to which a transportation agency may need to coordinate with local health officers. b) Case Study: Original Quarantine Powers The practice of quarantine has existed for thou- sands of years, discussed as early as the fourth century B.C.E. It gained popularity in the Middle Ages, when ships entering Venice ports in the twelfth and fourteenth centuries were required to anchor for 40 days before unloading passengers, crew, and cargo.311 Quarantine “soon became an established also enter and inspect property—in many circum- stances, without a warrant or advanced notice— when a reasonable health-related reason exists.302 Local health officials in almost all states have the authority to quarantine and isolate individuals. For example, in Nevada, a local health authority in its own jurisdiction may, without a warrant: (1) Take a person or group of persons alleged to and reason- ably believed by the health authority to have been infected with or exposed to a communicable disease into custody in any safe location under emergency isolation or quarantine for testing, examination, observation and the provision of or arrangement for the provision of consensual medical treat- ment; and (2) Transport the person or group of persons alleged to and reasonably believed by the health authority to have been infected.303 Local health officers and boards of health may also “prohibit public gatherings when necessary to control infectious or contagious disease.”304 In addi- tion, some states specify that cities may, at the request of the state health authority, “establish and maintain constantly within its limits one or more hospitals for the reception of persons having … diseases dangerous to the public health.”305 4. State Transit Authorities or Transportation Departments Compared to state health officials, state transit authorities or transportation agencies have extremely limited powers when it comes to quarantine and isola- tion. No state delegates quarantine and isolation powers to transportation authorities, although some states anticipate the two may overlap. For example, during a declared emergency, most states specify that other state agencies shall aid a governor’s efforts to protect the life and safety of its citizens.306 This could 302 See, e.g., Ind. cOde § 16-20-1-23 (2016) (“A local health officer [ … ] may enter any premises at any reasonable time and inspect, investigate, evaluate, conduct tests, or take spec- imens or samples for testing that may be reasonably neces- sary [ … ] for the prevention and suppression of disease.”); wIs. sTaT. ann. 252.03 (“Every local health officer, upon the appearance of any communicable disease in his or her terri- tory, shall immediately investigate all the circumstances.”). 303 nev. rev. sTaT. ann. § 441A.560 (2016). See also caL. heaLTh & safeTy cOde § 12045 (2016) (“The [local health] department may quarantine, isolate, inspect, and disinfect persons, animals, houses, rooms, other property, places, cities, or localities, whenever in its judgment the action is necessary to protect or preserve the public health.”). 304 Kan. sTaT. ann. § 65-129b, 129c (2016). 305 mass. gen. Laws ann. ch. 111 § 92 (2016). 306 N.J. sTaT. ann. aPP. A:9-40 (2016) (“It shall be the duty [ … ] of all other governmental bodies, agencies, and authorities of any nature whatsoever fully to cooperate with the Governor [ … ] in all matters affecting any emergency as defined by this act.”). 307 N.Y. cOmP. cOdes r. & regs. tit. 17, § 720.32(d) (2016). 308 Tex. heaLTh & safeTy cOde ann. § 81.086 (2016). 309 Tex. heaLTh & safeTy cOde ann. § 81.086(g) (2016). 310 Tex. heaLTh & safeTy cOde ann. § 81.086(i) (2016). 311 Mark A. Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine, 12 Ind. heaLTh L. rev. 227, 229–31 (2015).

32 twenty U.S. Quarantine Stations, located at “ports of entry and land border crossings; and use[s] these public health practices as part of a comprehensive quarantine system that serves to limit the introduc- tion of infectious diseases into the United States and to prevent their spread.”322 Thus, the CDC moni- tors people entering and exiting at U.S. POEs for sign of a contagious disease; it is also authorized to control the spread of disease between states and may do so through federal-issued quarantine or isolation orders. Although it has the power to do so,323 federal-issued quarantine orders are rare. Most notably, the federal government issued a quarantine order during the Spanish Influenza of 1918–1919; it has very rarely issued quarantine orders since then and only in very tailored circumstances.324 The quarantinable commu- nicable diseases are enumerated EO 13,295,325 which was most recently updated in 2014 to include severe acute respiratory syndromes.326 Other diseases include cholera, diphtheria, infectious TB, plague, smallpox, yellow fever, and viral hemorrhagic fevers.327 1. Federal Statutes for Public and Private Vessel Operators The master of a vessel or the person in charge of any conveyance participating in interstate traffic must notify the local health authority at the next port of call, station, or stop if a suspected case of communicable disease develops en route.328 Addi- tionally, private and public passenger vessel opera- tors (e.g., ferry and other water transportation services) cannot deny a passenger with a communi- cable disease or infection passage unless 1) U.S. or international public health authorities [. . .] have determined that persons with a particular condition should not be permitted to travel or should travel only under public health practice recognized by law throughout Europe.”312 This port-centric notion of quarantine continued into American colonies.313 Massachusetts had a quarantine law in 1647 for ships from the West Indies; other port cities had similar quarantine practices, such as New York and Boston, that predated the Constitution.314 Federal quarantine involvement with quarantine started during the yellow fever epidemic of 1793. The entire city of Philadelphia was quarantined, under martial law, and prohibited from traveling. In 1796, “Congress enacted the first federal quarantine law, which authorized the federal government to assist the states with quarantine.”315 In 1878, those powers were expanded by the National Quarantine Act,316 which created a quarantine division and “authorized the Surgeon General to issue quaran- tine regulations that did not conflict with state laws.”317 Over the next years, federal quarantine stations were established, and in 1944, the Public Health Service Act consolidated the federal govern- ment’s quarantine powers.318 Modern federal quar- antine authority and actions began in 1967, when the authority was transferred to the CDC. C. Federal Powers to Quarantine/Isolate As with states, the federal government derives its authority to quarantine and isolate from the Consti- tution, specifically from the Commerce Clause.319 Via the Public Health Service Act,320 it has desig- nated the Secretary of HHS as statutorily responsi- ble for preventing the “introduction, transmission, and spread of communicable diseases in the United States.”321 CDC carries out the day-to-day duties of this responsibility. In addition, the CDC operates 312 Id. at 230. 313 Id. 314 Id. 315 Id. at 230–231. 316 Act of June 14, 1879, 46 Pub. Res. 10, No. 6, 21 Stat. 50 (1879) (current version at 42 U.S.C. § 98 (2012)). 317 Id. 318 Id. See Public Health Service Act of 1944, Pub. L. No. 78-410, 58 Stat. 682 (current version at 42 U.S.C. §§ 201– 300hh (2000)). 319 The Commerce Clause gives Congress the power “[t]o regulate Commerce with foreign Nations, and among the several states.” U.S. cOnsT. art. I, § 8, cl. 3. 320 42 U.S.C § 264 (2016). 321 Centers for Disease Control and Prevention, Specific Laws and Regulations Governing the Control of Communi- cable Diseases, http://www.cdc.gov/quarantine/specificlaws regulations.html. 322 Centers for Disease Control and Prevention, Quaran- tine and Isolation, at https://www.cdc.gov/quarantine/ (last visited Jun. 23, 2016). 323 42 U.S.C. § 264. 324 Most notably, in 2007 for Andrew Speaker, a U.S. citizen who was diagnosed with TB and traveled interna- tionally against doctor’s orders; upon reentry into the United States he was issued a federal provisional isola- tion order. For more, see Hillary A. Fallow, Reforming Federal Quarantine Law in the Wake of Andrew Speaker: “The Tuberculosis Traveler”, 25 J. cOnTemP. heaLTh L. & POLy. 83 (2008). 325 68 Fed.Reg. 17,255 (April 9, 2003). 326 Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (Jul. 31, 2014). 327 Id. 328 42 C.F.R. § 70.4.

33 D. Federal vs. State Quarantine/Isolation Powers at a Glance Federal Government State Governments Source of Authority Federal power over isolation and quarantine derives from the Commerce Clause of the U.S. Constitu- tion, which grants Congress exclusive author- ity to regulate matters pertaining to interstate commerce.338 Under the Tenth Amendment, states retain police powers to enact laws governing the health, safety, morals, and general welfare of their citizens.339 Key Language The Public Health Service Act designates the Secretary of the Department of Health and Human Services as statutorily responsible for preventing the “introduction, transmission, and spread of communicable diseases in the United States.”340 During a declared state of emergency, governors possess broad dominion over statewide emergency response activities. Typically, in many states, this includes the power to “make, amend, and rescind all lawful necessary orders, rules, and regulations,” in relation to the emergency.341 conditions specified by the public health authorities; (2) An individual has a condition that is both readily transmissible by casual contact in the context of traveling on or using a passenger vessel and has serious health consequences.329 For the latter, both conditions (casual contact transmission contact and the serious health conse- quences) must be met to deny a passenger service.330 2. Proposed Rule Affecting Quarantine Authority On August 15, 2016, the CDC published a Notice for Proposed Rulemaking to revise current domes- tic and foreign federal quarantine regulations.331 The provisions are prompted by domestic and foreign disease outbreaks, including the Ebola virus, MERS, and repeated outbreaks of measles.332 The proposed provisions will “enhance HHS/CDC’s ability to prevent the further importation and spread of communicable diseases into the United States and interstate by clarifying and providing greater transparency regarding its response capa- bilities and practices.”333 Changes include defining or revising definitions for the “apprehension” and control of disease; clarifying what a “communicable period” is; and defining what “noninvasive” screen- ing procedures can include. Most importantly, the revisions define “public health emergency” for Section 361.334 Finally, the proposed rule clarifies the process for issuance of quarantine and isolation orders, includ- ing an addition that will allow HHS/CDC to issue group quarantine/isolation orders, such as “all indi- viduals onboard a particular interstate flight.”335 The CDC states it expects such federal group quar- antine orders will be “exceedingly rare.”336 The proposed rule also states that any federally issued quarantine will be reassessed no more than 72 hours after issued.337 329 49 C.F.R. § 39.31. 330 Id. 331 Control of Communicable Diseases, 81 Fed. Reg. 54,229 (proposed Aug. 15, 2016) (to be codified 42 C.F.R. 70, 71). 332 Id. 333 Id. at 54,231. 334 Id. at 54,238–40. The Proposed Rule also states that conveyance operators are prohibited from “knowingly” accepting individuals for transportation in the communi- cable stage of any specified disease or in violation of an HHS-issued travel permit. Although this provision existed prior to this Proposed Rule, the revisions clarify what “knowingly” means. Id. 335 Id. at 54,246. 336 Id. 337 Id. 338 U.S. cOnsT. art. 1. § 8, cl. 3. 339 U.S. cOnsT. amend. X. 340 42 U.S.C. § 264 (2016). 341 20 ILL. cOmP. sTaT 3305/6 (2016); see also, Ky. rev. sTaT. ann. § 39A.100 (2016) (“The Governor shall have [ … ] direct operational control of all disaster and emergency response forces and activities in the Commonwealth.”).

34 E. Additional Legal Issues with Quarantine and Isolation 1. Need for Policies and Procedures that Respect Civil Liberties of Employees Although firmly established as constitutional, quar- antine and isolation are intrusive measures and raise myriad concerns about individual liberties as well as being “extraordinarily disruptive on a societal basis.”345 Those subject to quarantine will likely be “unable to work, attend school, or maintain their normal social interactions.”346 Creating policies and procedures that respect these concerns is critical to maintain public trust and ensure the measure’s effectiveness. A common concern for employees regarding quar- antine and isolation is those employees subject to a quarantine or isolation may experience issues with their employers if they are unable to work. This is particularly true for nonsalaried workers or for those subject to quarantine or isolation orders of significant length.347 A few states specify protections for employ- ees subject to quarantine or isolation order, which would apply to transit or transportation workers. South Carolina, for example, states that “An employer may not fire, demote, or otherwise discriminate against an employee complying with an isolation or quaran- tine order; however, nothing in this section prohibits an employer from requiring an employee to use annual or sick leave to comply with such an order.”348 Many states have similar statutes protecting employees complying with quarantine and isolation orders.349 2. Need for Policies and Procedures that Respect Civil Liberties of Passengers Because of the restrictions on personal freedom, almost all states view quarantine and isolation as a response of last resort. North Carolina, for example, states that “[q]uarantine and isolation authority shall be exercised only when and so long as the public health is endangered, all other reasonable means for correcting the problem have been exhausted, and no less restrictive alternative exists.”350 Federal Government State Governments Power to Quarantine/ Isolate The Centers for Disease Control and Prevention is responsible for the day-to-day functions of disease control. As part of their duties, the CDC operates twenty U.S. Quarantine Stations located at various “ports of entry and land border crossings” to monitor for signs of IDOs.342 Health Official: Deriving their powers from statutory provisions, state health officials possess the power to quarantine and isolate in all states.343 In many states, this power persists even in the absence of a declared state of emergency. Local Health Official: The powers of local health officials largely parallel those of state health officials. In almost all states, these powers include the authority to quarantine and individuals.344 State Agencies: State agencies, such as transit authorities, possess very limited powers to quarantine or isolate. For the most part, the imposition of a quarantine or isolation order by a state agency will most likely occur only after a directive from the governor. 342 Centers for Disease Control, Quarantine and Isola- tion, at https://www.cdc.gov/quarantine/ (last visited Jun. 23, 2016). 343 See supra, § II(B). 344 See supra, § II(C). 345 Mark A. Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine, 12 Ind. heaLTh L. rev. 236 (2015). 346 Id. 347 E.g., those subject to quarantine and isolation during Ebola in 2014 were asked to remain home for 21 days. Most individuals would be unable to work during that time. 348 S.C. cOde ann. § 44-4-530(E) (2016). 349 md. cOde ann. heaLTh–gen., § 18-906(e) (“It shall be unlawful for any public or private employer to dis- charge an employee who is under an order of isolation or quarantine or because of such an order.”) (West 2016). New Jersey has codified procedures for reinstatement of employees after complying with an isolation or quaran- tine order. N.J. sTaT. ann. § 26:13-16 (2016). 350 N.J. sTaT. ann. § 26:12-15 (2016); N.C. gen. sTaT. ann. § 130A-145 (2016). D. Federal vs. State Quarantine/Isolation Powers at a Glance, continued

35 Additionally, although all states specify some due process for appealing a quarantine and isolation order, a few state explicitly that individuals may appeal the terms, treatment, or condition of their quarantine.356 b) State Specifications for Due Process Governors, state health officials, and local health officials are circumscribed by processes to ensure citi- zens cannot be subject to quarantine and isolation without some form of judicial review or due process. Indeed, quarantine case law considering the legality of the quarantine order usually focuses on the proce- dural protections offered an individual.357 Where practicable, most states require quarantine and isola- tion orders to be written, and state the reason for the order; the duration of the period; and the individuals or area over which it extends (if applicable).358 Virgin- ia’s statute is representative of the most comprehen- sive of these statutes, specifying that the state health official’s quarantine order should: (i) identify the communicable disease of public health threat that is reasonably believed to be involved and the reasons why exceptional circumstances apply and the quarantine is the necessary means to contain the risks of transmission of the disease; (ii) contain sufficient informa- tion to provide reasonable notice to persons who are affected by the order of quarantine that they are subject to the order; (iii) specify the means by which the quarantine is to be implemented; (iv) establish clearly the geographic parameters of the quarantine, if involving an affected area; (v) specify the duration of the quarantine; (vi) provide sufficient directions for compliance with the quarantine to enable persons subject to the order to comply; (vii) provide timely opportunities, if not readily available under the circumstances, for the person or persons who are subject to the order to notify employers, next of kin or legally autho- rized representatives and the attorneys of their choice of the situation [.]359 Almost all states specify that an order shall not exceed 30 days without review or reissuance.360 In order to extend that period of time, most states require a health official to reissue an order. Some Most states specify that when required, quaran- tine and isolation orders should be carried out in the “least restrictive means possible.”351 Additionally, quarantine and isolation orders are circumscribed by conditions of quarantine or isolation, as well as due process procedures outlined within state stat- utes. Although some states simply state procedures should reflect these concerns, many states specify procedures within their code. a) State Specifications for Quarantine Conditions Many states address quarantine conditions in a general manner. For example, Virginia simply states that the quarantine and isolation site should be, “to the extent practicable, safely and hygienically main- tained with adequate food, clothing, health care, and other essential needs made available” to the persons subject to the quarantine or isolation.352 Arizona states that “adequate food, clothing, medication, and other necessities, competent medical care and means of communicating with those in and outside these settings shall be made available.”353 New Mexico specifies that isolated or quarantined individuals must be “given a reliable means to communicate twenty-four hours a day with health officials.”354 A few states outline quite specific quarantine and isolation requirements. For example, in addition to specifying the need for adequate food, clothing, shel- ter, means of communication, medication, and competent medical care, Connecticut specifies that (8) to the extent possible without jeopardizing the public health, family members and members of a household shall be kept together, and guardians shall stay with their minor wards; and (9) to the extent possible, cultural and religious beliefs shall be considered in addressing the needs of indi- viduals and establishing and maintaining premises used for quarantine and isolation.355 351 N.J. sTaT. ann. § 26:12-15 (2016) (requiring “isolation or quarantine of any person by the least restrictive means necessary to protect the public health”); haw. rev. sTaT. ann. § 325-8 (2016) (“The department may establish and main- tain places of quarantine and quarantine any individual by the least restrictive means necessary to protect the public health.”); aLasKa sTaT. § 18.15.385 (a) (2016) (“The depart- ment may isolate or quarantine an individual or group of individuals if isolation or quarantine is the least restrictive alternative necessary to prevent the spread of a contagious or possibly contagious disease”); see also arIz. rev. sTaT. § 36-788 (2016); cOnn. gen. sTaT. ann. § 19a-221 (2016). 352 va. cOde ann. § 32.1-48.07 (2016). 353 arIz. rev. sTaT. ann. § 36-788 (2016). 354 N.M. sTaT. ann. § 12-10A-8 (2016). 355 cOnn. gen. sTaT. ann. § 19a-131b (2016). See also va. cOde ann. § 32.1-48.07 (2016) (“provide timely opportuni- ties, if not readily available under the circumstances, for the person or persons who are subject to the order to notify employers, next of kin or legally authorized representatives and the attorneys of their choice of the situation”). 356 N.M. sTaT. ann. § 12-10A-11(A) & (B) (2016) (“A per- son who is isolated or quarantined may request a hearing in court [,…] for remedies regarding treatment or the terms and condition of the isolation or quarantine” and “Upon receiving a request for a hearing pursuant to this section, the court shall fix a date for a hearing within seven days of the court’s receipt of the request.”). 357 See, e.g., State v. Kirby, 120 Iowa 26, 94 N.W. 254 (1903); Greene v. Edwards, 164 W. Va. 326, 263 S.E.2d 661 (1980). 358 va. cOde ann. § 32.1-48.09 (2016). 359 va. cOde ann. § 32.1-48.09(I) (2016). 360 N.C. gen. sTaT. ann. § 130A-145 (2016); md. cOde ann., heaLTh–gen., § 18-906 (b)(5)(iii) (2016).

36 unwanted legal actions. For additional discussion, see the following case study on Kaci Hickox.367 4. Federal Law and Potential Conflicts Generally, if federal law and state law are invoked at the same time, federal law will preempt state authorities on matters of quarantine and isolation. For the most part, however, state police powers remain intact during a public health response.368 In addition, if the Director of the CDC determines local or state efforts to prevent the spread of a disease are insufficient, the Director may take actions that are reasonably necessary to prevent the spread, including quarantine and isolation measures.369 However, more often the two cooperate: the CDC may assist state and local authorities in preventing the spread of a disease; but it may also ask for the assistance of state and local authorities in carrying out a quarantine. F. Case Study: The 2014 Ebola Outbreak In March of 2014, the largest Ebola outbreak in history struck West Africa.370 The outbreak lasted two years, and resulted in 28,616 cases of Ebola.371 Almost all of the cases were reported in Liberia, Guinea, or Sierra Leone, with just four cases reported in the United States.372 In August of 2014, WHO described the disease as “highly infectious and rapidly fatal,” but also “prevent[able]” because it is only spread by direct contact with infected bodily fluids.373 The 2014 Ebola outbreak highlighted challenges that emerge when state and federal government agencies pursue different strategies for confronting an IDO, as well as the importance of considered policies and procedures that respect civil liberties. states specify that a reissuance must be approved by a separate authority.361 Of those states that specify a review procedure, most states specify a truncated period and stream- lined process of review if a quarantine or isolation order is contested or appealed. In addition, several states include within their quarantine and isolation statutes a required review and/or appeal process, including accelerated timelines for petitions to be reviewed by a court.362 For example, Maryland states that those subject to a quarantine and isolation order may request a hearing in the circuit court, and the court should grant a hearing within 3 days of receiv- ing the request.363 During this appeal process, states generally hold that “an order imposing a quarantine [ … ] may be appealed but shall not be stayed during the pendency of the challenge;364 Maryland states that “a request for a hearing may not stay or enjoin an isolation or quarantine directive.”365 Finally, a select number of states contemplate the need to keep quarantine and isolation orders sealed from public view if the information could “exacer- bate the public health threat,” or compromise crimi- nal investigations or national security.366 Such statutes are rare, but could likely be used to protect an individual’s privacy if needed. 3. Importance of Containing Spread of Disease As discussed above, state actors with quarantine and isolation authority are granted the benefit of the doubt when acting where a reasonable concern of imminent threat to public health exists. However, having policies and procedures for isolation and quar- antine prior to a need arising may help alleviate due process and privacy concerns. Policies and procedures may be altered based on the disease characteristics and unique concerns of the outbreak, but preconsid- ered procedures will allow for employee familiariza- tion and training, speed potential disease containment, and help avoid ad hoc decisions that may bring 367 See infra, § VI.F.2. 368 See 42 U.S.C § 264(e) (“Nothing in this section or sec- tion 266 of this title, or the regulations promulgated under such sections, may be construed as superseding any provi- sion under State law (including regulations and including provisions established by political subdivisions of States), except to the extent that such a provision conflicts with an exercise of Federal authority under this section or section 266 of this title.”). 369 42 C.F.R. 1 § 70.2. 370 WHO, Ebola Outbreak, 2014–2015, www.who.int/csr/ disease/ebola/en/ (last visited February 5, 2017). 371 Id. (Blog is constantly updated.). 372 CDC, Ebola Hemorrhagic Fever, 2014 Ebola outbreak in West Africa – Case Counts, https://www.cdc.gov/vhf/ ebola/outbreaks/2014-west-africa/case-counts.html (last visited Sept. 6, 2016). 373 World Health Organization, Infection Prevention and Control (IPC) Guidance Summary: Ebola Guidance Package, http://www.searo.who.int/srilanka/documents/infection_ prevention_and_control_guidance_summary.pdf.(last visited Sept. 6, 2016). 361 For example, North Carolina requires an extension of a quarantine/isolation order be petitioned to the supe- rior court. N.C. gen. sTaT. ann. § 130A-145 (2016). See also md. cOde ann., heaLTh–gen., § 18-906 (b)(5)(i) (2016) (stating that the Health Secretary may move to extend an isolation or quarantine order beyond 30 days, pending a court’s review). 362 See, e.g., N.M. sTaT. ann. § 12-10A-7. (D) (2016) (stat- ing that “[a] person shall not be isolated or quarantined pursuant to an ex parte order for longer than five days without a court hearing to determine whether isolation or quarantine should continue.”). 363 md. cOde ann., heaLTh–gen., § 18-906 (2016). 364 ga. cOde ann. 38-3-51(D). 365 md. cOde ann., heaLTh–gen., § 18-906(b)(2) (2016). 366 va. cOde ann. § 32.1-48.09(H) (2016).

37 That same day, New Jersey authorities re- leased Hickox.381 Some states followed the CDC’s guidance. Minne- sota, for example, announced an Ebola observation plan on October 27 that was similar to the CDC’s guidance.382 It is interesting to note that the Minne- sota plan did not impose quarantine or isolation on returning healthcare workers unless they had been directly exposed to the virus. Instead, the Minnesota plan called for monitoring anyone returning from West Africa twice a day for 21 days to check for symptoms.383 Individuals with greater potential exposure faced greater travel restrictions, but only people known to have been exposed to the virus were confined to their homes.384 The differing approaches to quarantine and isola- tion between states such as New York and Minne- sota, as well as between states and the federal government, demonstrate the challenge of deter- mining and coordinating a response best suited to an IDO. 2. The Kaci Hickox Lawsuit In October of 2015, Hickox filed suit against New Jersey Governor Chris Christie and several other New Jersey officials, claiming that the state’s quar- antine policy violated her constitutional rights and constituted common law false imprisonment.385 Hickox alleges that there was no “medical or epide- miological justification” for physically confining her because she was not symptomatic, and that the state could have monitored her condition through less restrictive means.386 Hickox also believes she was entitled to a judicial hearing before being involun- tarily quarantined.387 Hickox is seeking relief under the Fourth Amendment (which prohibits unlawful arrests), the Fourteenth Amendment (which prohib- its states from violating citizens’ substantive and procedural due process rights), and the common law doctrine of false imprisonment (which prohibits public or private actors from confining people to bounded areas without justification or consent).388 New Jersey officials have sought to dismiss the lawsuit. State officials point to cases where courts have 1. Differing State and Federal Priorities Despite WHO’s guidance that Ebola was prevent- able,374 an October poll of U.S. citizens showed strong support for broad travel restrictions unsupported by public health officials.375 On October 24, the gover- nors of New York and New Jersey announced that all healthcare workers returning to the United States from West Africa would face mandatory 21-day quarantines, regardless of whether they were symptomatic or had been directly exposed to the virus.376 Kaci Hickox became the first and only person in New Jersey to be involuntarily quarantined during the Ebola outbreak. An American nurse arriving at Newark Liberty Airport, she was led by state offi- cials to a medical tent inside a hospital.377 Hickox was largely asymptomatic during her entire 80-hour confinement there, although New Jersey officials point out that on four occasions she had elevated temporal thermometer readings.378 When New York and New Jersey implemented their 21-day quarantine policies, the federal govern- ment had not yet made specific recommendations for monitoring returning healthcare workers. Anthony Fauci, the Director of the National Institute of Health’s National Institute of Allergy and Infectious Diseases, criticized the mandatory quarantine poli- cies implemented by New York and New Jersey.379 On October 27, the CDC issued its recommendations. The CDC recommended that returning healthcare workers be categorized into risk groups for likely Ebola exposure, and “contacted daily” during their first 21 days back in the United States. It did not recommend quarantining asymptomatic people.380 374 Id. 375 Brady Dennis & Peyton M. Craighill, Ebola Poll: Two- thirds of Americans Worried about Possible Widespread Epidemic in U.S., wash. POsT, Oct. 14, 2014. 376 Brady Dennis, Lena H. Sun, & Mark Berman, N.Y., N.J., Illinois to Impose New Ebola Quarantine Rules, wash. POsT, Oct. 25, 2014. The quarantine lasted 21 days because the virus can incubate in victims for up to that long without causing symptoms. 377 Josh Dawsey, Heather Haddon, & Jennifer Levitz, Kaci Hickox, Nurse Under Ebola Quarantine, Returns to Her Maine Home, waLL sT. J., Oct. 27, 2014. 378 Brief in Support of Motion to Dismiss In lieu of Answer Pursuant to Fed. R. Civ. P. 12(b)(6) on Behalf of Defendants at 23, Hickox v. Christie et. al., Docket No. 2:15-cv-7647-KM-JBC (D.N.J Jan. 15, 2016). 379 Jonathan Topaz, Christie: CDC Behind on Ebola, POLITIcO (Oct. 28, 2014), www.politico.com/story/2014/10/ chris-christie-ebola-response-112253. 380 CDC, CDC Issues Revised Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure (Oct. 27, 2014), http://www.cdc.gov/media/ releases/2014/s1027-revised-guidance-monitoring.html (last visited Sept. 6, 2016). 381 Verified Complaint at 26, Hickox v. Christie et. al., Docket No. 2:15-cv-7647-KM-JBC (D.N.J Oct. 22, 2015). 382 Lisa Schnirring, CDC, Some States Differ over Quarantine for Ebola Responders, CIDRAP News (Oct. 27, 2014), www.cidrap.umn.edu/news-perspective/2014/10/cdc- some-states-differ-over-quarantine-ebola-responders. 383 Id. 384 Id. 385 Id. at 28–32. 386 Id. at 29. 387 Id. at 30. 388 Id. at 28–32.