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

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38 VII. EMPLOYEE PROTOCOLS AND WORK SAFETY A. Definition and Scope of Employee Protocols and Work Safety During a PHE, transportation agencies have a duty not only to their passengers and the public, but also to their employees. Protocols and work safety measures that protect agency employees are needed not only to satisfy legal requirements, but to help ensure that employees feel secure and protected during a PHE or an IDO. In addition, having the appropriate measures in place may decrease worker attrition and the impact of worker attrition on disease control and response. 1. Compulsory Leave for Employees with Symptoms During an IDO, minimizing contact with others remains one of the best means of both prevention and containment. The concept of compulsory leave refers to the imposition of a mandatory leave of absence from work. For transportation agencies, this means requiring both symptomatic and poten- tially exposed employees to take time off. 2. Occupational Safety and Health Act and Compulsory Leave Broadly speaking, the Occupational Safety and Health Act obliges employers to provide a safe and hazard-free work environment to all employees.398 Although the Act does not define the specific duties of an employer in the event of a PHE, it does require employers to maintain a workplace free from recog- nized hazards.399 In the context of a PHE, compli- ance with this requirement could necessitate mandating leave for individuals possibly infected with a communicable disease. Most employers and employees in the private sector fall under OSHA’s jurisdiction under either OSHA or an OSHA-approved state plan.400 In states without an OSHA-approved health plan, state-run programs must be “at least as effective as the federal OSHA program.”401 OSHA does not cover workers employed by state or local governments; however, the OSHA protec- tions are available to these employees if they work permitted health officials to detain asymptomatic people who may have been exposed to a contagious disease. In particular, New Jersey points to Camara v. Municipal Court of San Francisco,389 a 1967 case in which the U.S. Supreme Court upheld San Francisco’s policy of detaining, examining, and treating sex work- ers, even if they were not visibly symptomatic.390 Camara, New Jerseys’ attorneys claim, demonstrates that governments can quarantine asymptomatic indi- viduals if those individuals’ jobs bring them into contact with contagious diseases.391 Hickox also alleges that Christie’s statement to the media that she was “obviously ill” portrayed her in a false light.392 Christie made the assertion that Hickox was “obviously ill” in a statement to the media defending his quarantine policy.393 A plaintiff can sue a defendant who makes a state- ment about her if the statement would lead a reasonable listener to draw an untrue conclusion,394 the defendant knew or recklessly disregarded the falsity of the statement, and the statement would be “highly offensive to a reasonable person.”395 In seeking to dismiss the suit, New Jersey officials argue that the claim is barred by a state statute,396 and that Hickox failed to cite specific facts that would indicate that Christie knew or recklessly ignored the falsity of his statements.397 The Hickox lawsuit underscores the potential difficulties of implementing policies and procedures that may not clearly address an individual’s civil liberties and due process rights. 389 387 U.S. 523, 87 S. Ct. 1727, 18 L. Ed. 2d 930 (1967). 390 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 16-17, Hickox v. Christie et. al., Docket No. 2:15-cv-7647-KM-JBC (D.N.J Jan. 15, 2016), (citing Camara v. Mun. Ct. of San Francisco, 387 U.S. at 539. Attorneys for New Jersey note that a nurse who volun- teered to treat Ebola victims is “obviously” on the “opposite end of the moral spectrum.” Id. 391 Verified Complaint at 17, Hickox v. Christie et. al., Docket No. 2:15-cv-7647-KM-JBC (D.N.J Oct. 22, 2015). 392 Id. at 32. 393 Id. at 19. 394 In a “false light” lawsuit, the requirement that the defendant knew or recklessly disregarded the fact that the statement was false is only present when the state- ment concerns a matter of public concern. Both Hickox and the State of New Jersey seem to agree that Hickox’s health was a matter of public concern. 395 Romaine v. Kallinger, 109 N. J. 282, 537 A.2d 284, 290 (1988). 396 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 36, Hickox v. Christie et. al., Docket No. 2:15-cv-7647-KM-JBC (D.N.J Jan. 15, 2016), (citing Camara v. Mun. Ct. of San Francisco, 387 U.S. at 539). 397 Id. (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)). 398 Occupational Safety and Health Act, Pub. L. No. 91-596, 84 Stat. 1590 (codified at 29 U.S.C. § 654) (1970). 399 Id. (specifying that “each employer shall furnish to each of his employees’ employment and a place of employ- ment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”). 400 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Workers’ Rights, OSHA 3021-11R 2016, https://www.osha. gov/Publications/osha3021.pdf. 401 Id. at 5.

39 Table 2. States without OSHA-Approved Plans408 Alabama Arkansas Colorado Delaware Florida Georgia Idaho Kansas Louisiana Massachusetts Mississippi Missouri Montana Nebraska New Hampshire North Dakota Ohio Oklahoma Pennsylvania Rhode Island South Dakota Texas West Virginia Wisconsin In states without approved OSHA plans, stan- dards of workplace health and safety are governed by any statutes that the respective states may have in place. Consequently, during a PHE, the obliga- tions of public transportation agencies to their employees may greatly vary from state to state. The following discussion of workplace health and safety regulations from Nebraska and Oklahoma provide insight into some of the protections offered by non- OSHA states. Nebraska empowers safety and health inspectors employed by the state’s Department of Labor to “inspect any place of employment with or without notice during normal hours of operation.”409 Factors affecting the Department’s decision to conduct an inspection include “workplace hazards as may be reported to the Department of Insurance, the Nebraska Workers’ Compensation Court, or the Department of Labor,” “possible employee exposure to toxic substances,” and “all other relevant factors.”410 Therefore, although public transit employees in Nebraska lack OSHA protections, it is possible that the state Department of Labor would mandate leave or suspend operations during an IDO. Safety requirements in Oklahoma closely parallel OSHA provisions in that the duties and responsi- bilities of employers include “furnish[ing] to each of his employees employment and a place of employ- ment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm . . ..”411 As previously discussed, in the event of an IDO, compliance with the dictates of this statute may mean mandatory time off for public transit employees that have been potentially in a state that has an OSHA-approved state plan.402 These states and territories are listed in Table 1: Table 1. States and Territories with OSHA-Approved Plans Alaska Arizona California Hawaii Indiana Iowa Kentucky Maine Maryland Michigan Minnesota Nevada New Mexico North Carolina Oregon South Carolina Tennessee Utah Vermont Virginia Washington Wyoming Puerto Rico In Connecticut, Illinois, New Jersey, New York, and the Virgin Islands, OSHA-approved state plans only cover employees in the public sector.404 However, federal OSHA standards cover private sector work- ers in these four states and the Virgin Islands.405 A few states may also specify their own policies for leave during a declared PHE. For example, Virginia has its own policy for PHE leave, which applies to all state employees.406 Twenty-four states, detailed in Table 2, do not have OSHA-approved state plans.407 402 Id. Section 18 of the Act permits states to promul- gate their own regulatory measures for the health and safety of workers so long as the state standards provide an equivalent, or greater, degree of protection as Federal OSHA standards. 29 U.S.C. § 667. The practical effect, if any, of the differences in the application of OSHA protec- tions to state and local employees during an IDO is an area that would benefit from additional research. 403 Id.; OSHA Trade Release, U.S. Dep’t of Lab., OSHA Approves Maine as Newest State Plan Protecting State and Local Government Workers (Aug. 4, 2015). 404 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Workers’ Rights, OSHA 3021-11R 2016, https://www.osha. gov/Publications/osha3021.pdf. 405 Id. The Act does not cover those that are “self-employed; immediate family members of farm employers; and work- place hazards regulated by another federal agency.” Id. at 6. 406 Virginia Dep’t. Human Resources, Public Health Emergency Leave (2007) (amended Policy No. 4.52 (2014)); available at http://www.dhrm.virginia.gov/docs/default- source/hrpolicy/pol4_52.pdf?sfvrsn=4. 407 Doug Farquhar & Amy C. Ellis, Farm Safety and OSHA Regulations, naT’L cOnf. Of sT. LegIs. (Apr. 8, 2014), http://www.ncsl.org/documents/agri/Farm_Safety_ OSHA_7.25.13.pdf. 408 Id. 409 neb. rev. sTaT. § 48-446(13) (1993). 410 Id. § 48-446(3). 411 OKLa. sTaT. tit. 40, § 403 (2014).

40 close contact and airborne particles,419 failure to remove an infected, or possibly infected, worker could seriously imperil the health and well-being of all other employees. Consequently, as long as a significant risk of transmission exists, the Court’s holding in Arline suggests a sound legal basis for compulsory leave. B. Employee Refusal to Work During an Outbreak During an IDO or PHE, workers may refuse to work, either out of fear for their own safety or because of a need to care for or protect loved ones. In these circumstances, prevalent employee absentee- ism would be very costly and disruptive to transpor- tation operations. In general, OSHA permits employees to refuse to work when there exists an objectively “reasonable belief that there is imminent death or serious injury.”420 The following sections discuss additional legal frameworks that may address these issues. 1. Compelling Workers, Generally Some groups of workers may be compelled to work under certain circumstances, such as health care workers during a PHE,421 who are bound to work via professional requirements and contrac- tual agreements.422 These contracts often give employers the right to fire employees who refuse to work in the event of a pandemic.423 Moreover, agree- ments that mandate a physician be on call for emergency examinations are not uncommon. Many exposed to a communicable disease. Moreover, the Oklahoma statute is unequivocal in its coverage of public employees.412 In summary, whether or not public transportation agencies in non-OSHA states will be able to institute compulsory leave during a PHE will be dependent on the particular statutory language of that state. 3. Legal Basis for Compulsory Leave In an IDO, barring other legal interventions,413 the legality of an employer’s use of mandatory leave will likely be dependent upon its compliance with the ADA.414 The ADA permits employers to mandate leave if the employer believes that an employee poses a “direct threat” to the workplace.415 The ADA defines a “direct threat” as “one that carries with it a significant risk of substantial harm.”416 Employees who are infected may fall into this category. In School Bd. of Nassau County v. Arline,417 the Supreme Court held that, “A person who poses a significant risk of communicating an infectious disease to others in the workplace will not be other- wise qualified for his or her job if reasonable accom- modation will not eliminate that risk.”418 As most infectious diseases are easily transmitted through 412 Compare OKLa. sTaT. tit. 40, § 402 (2014) (defining “employer” as the state and “all [the state’s] political sub- divisions which as in its employ one or more individuals performing services for it in employment”) with neb. rev. sTaT. § 48-446 (extending only to employers which are subject to the Nebraska Workers’ Compensation Act, and thus, excluding employees of “railroad compan[ies] engaged in interstate or foreign commerce.”). 413 A governor’s authority to suspend or promulgate rules and regulations respond to a declared emergency/ public health emergency could impact this. 414 Americans with Disabilities Act, Pub. L. No. 101-336, 104 Stat. 327, (1990) (codified at 42 U.S.C. § 12113 (1990). 415 Id. at n.24. See Brian S. Prestes, Disciplining the Americans with Disabilities Act’s Direct Threat Defense, 22 berKeLey JOur. emP. & Lab. L. 409, 414 (2001). “Th[e] ‘direct threat’ defense attempts to balance employers’ legitimate efforts to ensure safe working conditions with the rights of individuals with disabilities not to be dis- qualified from jobs because of unfounded fears that they pose increased health or safety risks in the workplace” (citation omitted). Id. at n.24. 416 42 U.S.C. § 12182 (1990) (defining “direct threat” further as one that “cannot be eliminated by a modifica- tion of policies, practices, or procedures or by the provision of auxiliary aids or services”). 417 480 U.S. 273, 107 S. Ct. 1123, 94 L. Ed. 2d 307 (1987). 418 Id. at 287 n.16. This case centered on a school board’s discharge of a tubercular elementary teacher; ultimately, the Supreme Court remanded for further assessment of the risk posed by the teacher’s continued employment. Id. at 288. 419 deLaware heaLTh and sOcIaL servIces dIvIsIOn Of PubLIc heaLTh, dIrecT and IndIrecT dIsease TransmIssIOn (2011) (including Hepatitis A and B, influenza, measles, and adeno/rhino viruses, and mycoplasma pneumoniae). 420 See Whirlpool Corp. v. Marshall, 445 U.S. 1, 8, 100 S. Ct. 883, 889 63 L. Ed. 2d 154 161, (1980), (validating 29 CFR 1977.12, which states, “If the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition, he would be protected against subsequent discrimination.”). 421 See Carl H. Coleman, Beyond the Call of Duty: Com- pelling Health Care Professionals to Work During an Influenza Pandemic, 94 IOwa L. rev. 17 (2008) (discussing the forces, legal and social, used to compel health care pro- fessionals in times of crisis). 422 amerIcan medIcaL assOcIaTIOn, cOde Of eThIcs, § e-9.067, PhysIcIan ObLIgaTIOn In dIsasTer PreParedness and resPOnse, available at http://journalofethics.ama-assn. org/2010/09/pdf/coet1-1009.pdf (stating that the “ethical obligation” of physicians to respond in times of national, regional, and local crisis “holds even in the face of greater than usual risks to their own safety, health or life”). 423 Carl H. Coleman, Beyond the Call of Duty: Compel- ling Health Care Professionals to Work During an Influenza Pandemic, 94 IOwa L. rev. 14 (2008).

41 of transportation in emergencies has been noted repeatedly.428 Similarly, in a declared emergency or PHE, Governors may use their broad powers to require transit agencies to aid in response efforts. For example, Arizona law states that the Governor “may direct all agencies of the state government to utilize and employ state personnel, equipment and facilities for the performance of any and all activi- ties designed to prevent or alleviate actual and threatened damage due to the emergency.”429 Such statutes could be used to compel state transporta- tion employees to work during an IDO. 2. Overtime Requirements for Employees Should transportation workers be required to work during a PHE, the Fair Labor Standards Act (FLSA) would mandate overtime pay.430 Passed by Congress in 1938, the FLSA was not originally applicable to public transit agencies.431 In the 1985 Supreme Court case, Garcia v. San Antonio Metro- politan Transit Authority,432 however, the Court held that Congress possessed the power under the Commerce Clause of the Constitution to regulate the wages and hours of state and local government employees.433 Under the FLSA, employers must pay overtime at a rate of “at least one and one-half times the employees’ regular rates of pay for all hours worked over 40 in the workweek.”434 Amended in 1985, the FLSA also permits employers to offer compensatory time off “at a rate of not less than one and one-half hours for each overtime hour worked” instead of overtime pay.435 3. Liability Under the Americans with Disabilities Act A worker’s refusal to work may create legal liabil- ity concerns, in addition to productivity and cost concerns. According to the ADA: states authorize the use of fines, revocation of professional licenses, and potential imprisonment in the event of healthcare worker absenteeism.424 The enforceability of mandatory work provisions for physicians is rooted in the fact that exposure to infectious diseases is not an unforeseeable conse- quence in the health care profession.425 Generally, however, refusal-to-work laws hinge on a determi- nation of a working condition as “abnormally dangerous.”426 In an IDO, transportation workers may argue that the risk of contracting an infectious disease is “abnormally dangerous,” particularly for those with whom daily public interactions are neces- sary, such as bus drivers, turnstile monitors, and trolley operators.427 However, these duties may argu- ably be considered an unavoidable part of their day- to-day activities. For this reason, mandatory work provisions that are currently limited to physicians and other public health workers may, in an IDO, be adopted to include transportation workers. Although most provisions about compelling work- ers do not apply to transportation workers, the role 424 See, e.g., md. Pub. safeTy cOde § 14-3A-08 (West 2016) (subjecting to discipline any practitioner who fails to comply with the governor’s order “to participate in dis- ease surveillance, treatment, and suppression efforts”). Most of these state provisions follow the proposed Model State Emergency Health Powers Act, (MSEHPA) which significantly broadened the penalties faced by healthcare professions for a refusal to work during a public health emergency. cenTer fOr Law and The PubLIc’s heaLTh, mOdeL sTaTe emergency heaLTh POwers acT, available at http://www.publichealthlaw.net/MSEHPA/MSEHPA.pdf (last visited Sept. 1, 2016). 425 Carl H. Coleman, Beyond the Call of Duty: Compelling Health Care Professionals to Work During an Influenza Pandemic, 94 IOwa L. rev. 16 (2008) (“Working during a pandemic would probably not be considered abnormally dangerous for workers in fields like emergency medicine, where exposure to contagious diseases is clearly foresee- able”) (citation omitted). 426 Fair Labor Standards Act, 29 U.S.C. § 143 (1976); Larry Drapkin, The Right to Refuse Hazardous Work after Whirlpool, 4 berKeLey J. emP. & Lab. L. 29, 51 (1980). (“Thus when “abnormally dangerous” conditions exist, employees may engage in work refusals without fear of contract violation”). 427 In its 2009 guIdance fOr PreParIng wOrKPLaces fOr an InfLuenza PandemIc, OSHA noted that “Medium expo- sure risk occupations include jobs that require frequent, close contact (within 6 feet) exposures to known or suspected sources of pandemic influenza virus such as coworkers, the general public, outpatients, school children or other such individuals or groups.” This may provide a helpful guide in thinking about employee risk. OSHA, Guidance for Preparing Workplaces for an Influenza Pandemic, Classifying Employee Exposure to Pandemic Influenza at Work, OSHA 3327-02N 2007, available at https://www.osha.gov/Publications/influenza_pandemic. html#classifying_exposure. 428 Michael Schwartz and Todd Lippman, Evacuation Station: The Use of Public Transportation in Emergency Management Planning, ITe J. On The web (Jan. 2008), http://www.vtpi.org/evacuation.pdf. 429 arIz. rev. sTaT. ann. § 26–303 (2016). 430 Fair Labor Standards Act of 1938, Pub. L. No. 75-718, 52 Stat. 1060 (codified at 29 U.S.C. § 207 (2010)). 431 Wage and Hour Division History, U.S. deP’T Of Lab., https://www.dol.gov/whd/about/history/whdhist.htm. 432 469 U.S. 528, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985). 433 Id. at 554–55. Although amendments made in 1966 to the FLSA expanded coverage to state and local government employees for the first time, public transit agencies contin- ued to withhold overtime pay until Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985). U.S. DEP’T OF LAB., supra note 431. 434 29 U.S.C. § 207 (2010). 435 U.S. deP’T Of Lab., Fact Sheet #7: State and Local Governments Under the Fair Labor Standards Act (FLSA), (Mar. 2011), https://www.dol.gov/whd/regs/compliance/ whdfs7.pdf.

42 court for violations of the FMLA.443 In the 2003 case, Hibbs, an employee of the Nevada Human Resources Department sought and received leave under the FMLA to care for his ailing wife.444 In deciding the case, the majority found that Congress’ intent for the FMLA to be enforceable against all employers was “unmistakably clear,” and upheld Hibbs’ FMLA claim against the state of Nevada in federal court.445 5. Federal Employees Family Friendly Leave Act The FFLA confers unpaid, job-protected leave for general family care and bereavement purposes.446 Notably, the Act expands on the scope of the FMLA by permitting up to 13 days of sick leave for the preparation of funeral arrangements.447 The Act allots full-time employees up to 12 weeks of sick leave per calendar year for long-term care of a family member with a serious health condition.448 Despite the Act’s similarity to the FMLA, it is a separate and distinct program. Both the FMLA and FFLA provide mechanisms through which transit employees may take leave voluntarily, or in the case of an infected employee, be compelled to take leave, while ensuring job protection. C. Transportation Protocols The Department of Labor, through the National Transit Systems Security Act (NTSSA), prohibits public transportation agencies from reprimanding or taking punitive action against an employee for “refusing to work when confronted by a hazardous safety or security condition related to the perfor- mance of the employee’s duties.”449 The refusal to No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.436 Should a bus operator or train conductor refuse to provide service to an individual with an infectious disease, the agency may possibly be held liable for discrimination. The success of such a claim is uncertain, however, as courts would first have to determine that the disease constitutes a “disabil- ity” under the ADA’s narrow definition.437 More- over, transportation agencies could counter the claim by arguing that the claimant’s presence on the carrier posed a “direct threat” to the health and safety of all involved.438 4. Family and Medical Leave Act The Family and Medical Leave Act of 1993 (FMLA) requires employers with more than 50 employees to provide up to 12 weeks of unpaid leave for workers dealing with specified family and medi- cal emergencies.439 Specifically, regarding family care, the Act entitles employees to FMLA leave, “to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”440 In effect, the statute would cover employees who take time off to render assistance to disease-stricken family members in the event of an IDO. For transportation workers, many of whom are employed by state governments, the FMLA is of particular importance because it provides a private right of action against any employer, including public agencies, who violate its provisions.441 In Nev. Dep’t of Human Resources v. Hibbs,442 the Supreme Court affirmatively maintained the right of individ- uals to sue states for monetary damages in federal 436 42 U.S.C. § 12184 (2016). 437 42 U.S.C. § 12102 (2016) (defining “disability” as “a physical or mental impairment that substantially limits one or more major life activities of such individ- ual” and requiring “a record of such an impairment; or being regarded as having such an impairment”). 438 Brian S. Prestes, Disciplining the Americans with Disabilities Act’s Direct Threat Defense, 22 berKeLey J. emP. & Lab. L. 409 (2001). 439 Employees are not eligible until they have been employed “for at least 12 months by the employer with respect to whom leave is requested” and “for at least 1,250 hours of service with such employer during the previous 12-month period.” Id. 440 29 U.S.C. § 2612(A)(C). 441 29 U.S.C. § 2611(4)(B). 442 Hibbs, 538 U.S. 721, 123 S. Ct. 1972, 155 L. Ed. 2d 953 (2003). 443 Id. at 740. At issue was whether the FMLA contra- vened the Eleventh Amendment’s bar on individuals from bringing suit, in a federal forum, against a nonconsenting state. See, e.g., Ex parte New York, 256 U.S. 490, 497, 41 S. Ct. 588, 589, 65 L. Ed. 1057, 1061 (1921) (stating that “the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given”). 444 Hibbs, 538 U.S. at 726. Hibbs’ wife was involved in an automobile accident and required neck surgery. 445 Id. at 740 (finding that Congress properly abrogated state immunity because “it made its intention to abrogate unmistakably clear in the language of the statute and act[ed] pursuant to a valid exercise of its power under § 5 of the Fourteenth Amendment”). 446 OffIce Of PersOnneL managemenT, Fact Sheet: Sick Leave for Family Care or Bereavement Purposes, available at https://www.opm.gov/policy-data-oversight/pay-leave/ leave-administration/fact-sheets/sick-leave-for-family- care-or-bereavement-purposes/. 447 Id. 448 Id. 449 National Transit Systems Security Act, Pub. L. No. 110-53, 121 Stat. 266, (codified at 6 U.S.C. § 1412 (2007)).

43 Though symptoms were similar to the seasonal flu with more associated respiratory complications asso- ciated with it, public health officials warned the outbreak could be widespread and began responding early. On April 15, 2009, the first U.S. case of H1N1 was reported in a 10-year-old California patient.456 As part of the government’s response activities, DHS asked transportation agencies to coordinate with local governments to discuss worker absentee- ism and disease control measures.457 Much of these measures focused on risk communication. Providing services to over 1 million riders daily in the Mary- land, Virginia, and District of Columbia region and employing 10,000 employees, the Washington Metro Area Transit Authority (WMATA) made heavy use of public service announcements to minimize the risk of transmission among employees and passen- gers.458 In addition, in October 2009, WMATA increased its disinfection regimen for “touch surfaces such as fare boxes, telephones, and fare gates” from once every two weeks to once a week.459 OSHA provided additional guidance for mitigat- ing worker absenteeism. OSHA encouraged disaster planning, and issued a number of recommendations, including that workplaces “[p]lan for downsizing services but also anticipate any scenario which may require a surge in your services.”460 Additional recommendations, which are notable for their appli- cability during any IDO, include:461 • Working with suppliers to ensure continued operation and services. • Minimizing exposure to fellow employees or the public. • Identifying business-essential positions and cross-training three or more employees for those positions, or developing ways to function without those positions. • Organizing and identifying a central team of people or point person to act as a public informa- tion officer to employees and customers.462 work must have been made “in good faith” with no “reasonable alternative” available to the employee.450 The NTSSA further stipulates that the hazardous condition must threaten “an imminent danger of death or serious injury.”451 Though no cases exist for a worker claiming cover- age under the NTSSA for refusal to work during a PHE, limited case law suggests a court’s willingness to uphold a claim where reasonably made in “hazard- ous safety or security conditions.”452 D. Case Study: Worker Absenteeism Example from Pandemic Flu Planning Many planning estimates recommend public agencies of all kinds to expect a significant reduction in workforce during a PHE such as an IDO.453 OSHA has at times estimated worker absenteeism could hit 40% during peak periods of a pandemic flu.454 The 2009 H1N1 outbreak provided an opportu- nity to evaluate policies and protocols to ensure workers stayed safe and reported for duty. Circulat- ing rapidly among humans and pigs, “the virus was a unique combination of influenza virus genes never previously identified in either animals or people.”455 450 Id. 451 Id. 6 U.S.C. § 1412(B)(2)(B) (2007), which governs covered work refusals, does not define the meaning of “imminent danger.” The Fifth Circuit takes “imminent danger” to mean a hazardous condition “which could rea- sonably be expected to cause death or serious physical harm immediately or before the imminence of such dan- ger can be eliminated through the enforcement proce- dures otherwise provided.” Marshall v. Daniel Constr. Co., 563 F.2d 707, 710 n.6 (5th Cir. 1977). 452 Nichik v. New York City Transit Authority et al., 2013 U.S. Dist. LEXIS 4692 (E.D.N.Y. Jan. 11, 2013). In Nichik, a NYCTA superintendent claimed that the NYCTA disciplined him for reporting unsafe, unlocked gates in a subway station. Id. at 3. In denying the defendant’s motion for summary judgment, the Court reaffirmed the NTSSA’s protection of transportation workers who report “hazard- ous safety or security conditions” and determined that a jury could find Nichik’s reports to be a protected activity under the NTSSA. Id. at 10. However, in a declared state of emergency, governors may compel state employees to work, including in an IDO. See “Compelling Workers, Gen- erally,” Section VII.B.1 supra. 453 See, e.g., Dean A. Jones, Linda K. Nozick, Mark A. Turnquist, & William J. Sawaya, Pandemic Influenza, Worker Absenteeism and Impacts on Freight Transportation, Hawaii International Conference on System Sciences, Proceedings of the 41st Annual, Jan. 2008, at 1. 454 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Guidance on Preparing Workplaces for an Influenza Pandemic (2009), available at https://www.osha.gov/ Publications/OSHA3327pandemic.pdf. 455 cenTers fOr dIsease cOnTrOL, The 2009 H1N1 Pandemic: Summary Highlights, April 2009–April 2010, available at http://www.cdc.gov/h1n1flu/cdcresponse.htm. 456 Id. 457 Kathy Scott, H1N1: Are you Ready?, mass TransIT magazIne (Nov. 12, 2009), http://www.masstransitmag.com/ article/10220464/h1n1-are-you-ready. 458 Id. One such announcement urged riders to “take basic precautions to protect themselves and their fellow riders, including frequent hand washing, covering the mouth and noise with a tissue when coughing or sneezing … and avoiding touching [of] the eyes, nose and mouth.” 459 Id. 460 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Guidance on Preparing Workplaces for an Influenza Pandemic (2009), https://www.osha.gov/Publications/OSHA 3327pandemic.pdf. 461 Id. 462 Id.

44 2. Personal Protective Equipment To minimize the risk of exposure and infection, workplaces should make use of personal protective equipment (PPE) in conjunction with other methods of control such as proper personal hygiene and social distancing. Although the type of PPE used will vary depending on the communicable disease, PPE should always be: • Properly fitted and some must be periodically refitted (e.g., respirators). • Conscientiously and properly worn. • Regularly maintained and replaced, as necessary. • Properly removed and disposed of to avoid con- tamination of self, others, or the environment.469 As per OSHA requirements, PPE such as respirators, goggles, gloves, and surgical masks must be provided to employees without charge.470 Transportation agencies, including airlines, have typically deferred to the CDC’s guidance on the provision of PPE. For instance, during the 2009 H1N1 pandemic—as per CDC recommendations—U.S. airlines did not require crewmembers to wear PPE, such as respira- tors or disposable coats, despite the adoption of this protocol in other countries.471 For more information on the use of PPE as an infec- tion control and disinfection measure, see Section VIII. 3. Case Study: Airline Workers During Ebola When a nurse that had been exposed to, and poten- tially infected with, Ebola flew on a domestic plane, U.S. airline workers questioned the commercial flight industry’s preparedness in the face of an IDO. This case study will look at the issues airport and airline authorities and employers faced during that time to evaluate lessons learned for all common carriers. On October 13, 2014, Amber Vinson took a commercial flight from Cleveland, Ohio to Dallas, Texas after recently caring for a patient with E. Employee Protection on the Job Protecting employees on the job not only ensures good health, it improves morale and can help ensure that workers report to duty during a PHE or IDO. The following sections highlight federal require- ments for work safety, as well as additional protec- tions for employees. 1. Relevant Occupational Safety and Health Administration Provisions As previously discussed, employers have a general duty to provide a safe and healthful workplace that is free from serious recognized hazards.463 Specifically, OSHA standards require employers to minimize the amount of hazardous substances that employers are exposed to, observe safe work practices, and monitor exposure to hazardous materials.464 OSHA also confers protection against employer retaliation.465 Employers may not take “adverse action” against employees for “filing an OSHA complaint, partici- pating in an inspection or talking to the inspector, seeking access to employer exposure and injury records, [or] raising a safety or health issue with the employer.466 During a PHE, OSHA will be one of the main pillars of workers’ rights. Although the Act turns on a “reasonableness” determination that objectively assesses an employee’s belief in “imminent danger”— some leeway may be afforded in an IDO. Many communicable diseases can be lethal and, particu- larly with novel diseases, it may be difficult to gauge when and where actual danger of infection exists. Thus, in some PHEs, it may be considered “reason- able” for an employee to fear transmission or expo- sure even in the absence of conclusive proof.467 Consequently, in these instances, proper application of the OSH Act reasonableness test will require find- ers of fact to “acknowledge the employee’s limited access to information and apply the objective stan- dard accordingly.”468 463 Occupational Health and Safety Act, 29 U.S.C. § 654 (1970). 464 See, e.g., General Environmental Controls, 29 CFR 1910.147. 465 See OSHA Recommended Practices for Anti- Retaliation Programs, 29 U.S.C. § 660(c); 29 CFR 1977 (2016). 466 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Workers’ Rights, OSHA 3021-11R 2016, https://www.osha. gov/Publications/osha3021.pdf. 467 Larry Drapkin, The Right to Refuse Hazardous Work after Whirlpool, 4 berKeLey J. emP. & Lab. L. 29, 45 (1980). (Noting the “potentially lethal effects of even short-term exposure to toxins” and an employee’s “reasonabl[e] fear that a substance used in the workplace presents an imminent hazard, even if she lacks conclusive scientific evidence.”). 468 Id. 469 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, Workers’ Rights, OSHA 3021-11R 2016, https://www.osha. gov/Publications/osha3021.pdf. 470 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, handOuT #7 emPLOyers musT PrOvIde and Pay fOr PPe, available at https://www.osha.gov/dte/outreach/intro_ osha/7_employee_ppe.pdf. Effective May 15, 2008, employ- ers “cannot require workers to provide their own PPE … even when a worker provides his or her own PPE, the employer must ensure that the equipment is adequate to protect the worker from hazards at the workplace.” 471 Karen Jacobs, Global Airlines Move to Reduce Infec- tion Risks, reuTers, June 3, 2009, http://www.reuters.com/ article/us-airlines-health-idUSTRE5524WU20090603. Among the airlines to mandate PPE for flight attendants were China Southern Airlines, China Eastern Airlines, Singapore Airlines Ltd., and Mexicana Airlines.

45 infected with the virus.483 Cabin cleaners in Philadel- phia also rallied, citing concerns about their health in light of potentially inadequate training and protec- tions.484 In other parts of the country, local unions scheduled meetings with their cabin and terminal cleaners to discuss CDC and WHO cleaning guide- lines. A statement issued by the Services Employees International Union Local 32BJ, Boston, stated its training was to specifically cover “guidelines for clean- ing airplane cabins and lavatories, for cleaning an area with possible Ebola exposure, and for determining which equipment employers are required to supply.”485 These examples demonstrate the importance of communicating with workers and ensuring they feel they are protected and well-equipped to handle an IDO. While all transportation agencies have proto- cols in place for responding to and cleaning up bodily fluids, employees benefit greatly from refreshing trainers on the protocols and knowing protocols have been updated with the most up-to-date information about specific and potential infectious diseases. F. Additional Legal Issues with Employee Protocols and Worker Safety In the event of a PHE, transportation agencies will necessarily play a critical role in the general movement of individuals, and may potentially face a specific requirement to aid in transport of ill passen- gers.486 As early as 2003, literature was noting that “although it appears public and specialized, transit often plays an important role in emergency response, both the disaster literature and case studies tend to skim over that. There appears to be no definitive material showing how this fits into planning and response and how problems are dealt with.”487 Thus, Ebola.472 Vinson inserted the patient’s catheter and was otherwise in close contact with him as he expe- rienced heavy bouts of vomiting and diarrhea.473 The 29-year-old nurse states that she consulted the CDC prior to boarding the flight with a slightly elevated fever, but an official cleared her for travel.474 Her fever worsened, and approximately 24 hours later, she tested positive for Ebola.475 Following news of Vinson’s diagnosis, workers throughout the transportation industry raised seri- ous concerns over Vinson’s presence on the flight.476 Although the commercial plane was routinely cleaned after Vinson’s flight, it flew five times the next day before authorities contacted the airline.477 As per WHO, the basic cleaning operations performed by the crew that night were likely ineffective against Ebola.478 Ebola decontamination of hard, nonporous surfaces usually requires multiple applications of strong EPA-approved disinfectants, and soaking of “bulk spill[s]” such as diarrhea or vomit for a prolonged period of time in disinfectant.479 The Association of Flight Attendants and the Air Line Pilots Association, two of the nation’s largest unions for flight attendants and pilots, issued state- ments following the incident calling for better train- ing,480 but the true concern arose from cabin cleaners and janitorial staff. In New York, 200 airline cabin cleaners from LaGuardia and JFK went on strike over working conditions.481 Specifically, the strikers cited vomit, blood, and hypodermic needles as common encounters in their line of work,482 all of which could spread the Ebola virus if from someone 472 Amy Davidson, Amber Vinson’s Flight: An Ebola Nurse and the C.D.C., new yOrKer, Oct. 16, 2014. 473 Id. 474 Id. 475 Id. 476 Id. 477 Id. 478 See wOrLd heaLTh OrganIzaTIOn, guIde TO hygIene and sanITaTIOn In avIaTIOn 55-58 (2009), available at http://www.who.int/water_sanitation_health/hygiene/ ships/guide_hygiene_sanitation_aviation_3_edition.pdf. Routine cleaning, usually preformed once every 24 hours, usually only entailed tasks such as removal of trash, disinfection of nonporous surfaces, replacement of used blankets, and sweep of stairs. Id. 479 OccuPaTIOnaL safeTy and heaLTh admInIsTraTIOn, cLeanIng and decOnTamInaTIOn Of ebOLa On surfaces (2014), available at https://www.osha.gov/Publications/ OSHA_FS-3756.pdf. 480 ABC News, Airline Cabin Cleaners Strike Over Exposure Fears (Oct. 9, 2014), available at http://abc news.go.com/Health/airline-cabin-cleaners-strike-ebola- exposure-fears/story?id=26066160. 481 Id. 482 Id. 483 cenTers fOr dIsease cOnTrOL and PrevenTIOn, hOw ebOLa Is sPread (2015), available at https://www.cdc.gov/ vhf/ebola/pdf/infections-spread-by-air-or-droplets.pdf. Transmission of the virus is also possible through con- tact with contaminated syringes and needles. Id. 484 Thomson Reuters, 32 No. 18 Westlaw Journal Avia- tion 6 (Nov. 2014). 485 ABC News, Airline Cabin Cleaners Strike Over Exposure Fears (Oct. 9, 2014), available at http://abcnews. go.com/Health/airline-cabin-cleaners-strike-ebola- exposure-fears/story?id=26066160. 486 Most states provide that in a declared state of emergency/public health emergency, state and local agen- cies are required to aid the governor in the response effort. In the past, public transit has been looked to provide evacuation services. Michael Schwartz & Todd Lippman, Evacuation Station: The Use of Public Transportation in Emergency Management Planning, ITE J. On The web (2008), available at http://www.vtpi.org/evacuation.pdf. 487 Michael Schwartz & Todd Lippman, Evacuation Station: The Use of Public Transportation in Emergency Management Planning, ITE J. on The web (2008), available at http://www.vtpi.org/evacuation.pdf (citing a 2003 article).

46 could theoretically place a transit agency in viola- tion of the ADA.493 Regarding disaster planning, transit agencies should thus prepare for the possi- bility that they may be called upon to transport all passengers, ill or otherwise, during a declared state of emergency or PHE. Consequently, transportation agencies should consider providing employees with additional training that focuses on how to properly interact with infected or suspected infected passen- gers and proper PPE usage. 3. Importance of Helping Contain Spread of Disease Generally speaking, in states with an approved OSHA plan, employers have a legal responsibility to maintain a safe work environment. Implicitly, the concept of a “safe” environment includes protection from exposure to infectious diseases. Key responsi- bilities as defined by OSHA include: • Routine examination of workplace conditions. • Communication of potential hazards through the use of posters, signs, codes, or labels. • Safety training that accommodates the lan- guage and literacy level of employees. • Maintenance of a workplace free from “serious recognized hazards.”494 In addition to avoiding the assessment of civil penalties, and in some instances, imprisonment for violation of OSHA provisions, transportation agen- cies have an inherent interest in containing the spread of disease. Fear or anxiety inspired by an IDO may result in the decrease of ridership and revenue. In 2014, an Ebola scare led to the suspen- sion of trains and the shutdown of a Massachusetts Bay Transportation Authority (MBTA) station.495 The scare came after a woman, mistakenly identi- fied as Liberian, vomited on a train platform.496 Proper employee protocols and training on those protocols may help mitigate unnecessary and resource-intensive responses.497 transportation agencies with employee and work protocols in place will be better prepared to act when and if called upon to do so. 1. Need for Policies and Procedures that Respect Civil Liberties of Employees Although employee protocols such as compulsory leave may be justified during a PHE, it is important to implement such protocols in a way that respect civil liberties as much as possible. As previously discussed, state governors possess extensive powers to prevent the spread of communi- cable diseases, which may include the ability to require employees to submit to physical examina- tions, testing, and/or treatment,488 or to compel work, or compulsory leave. In general, states will need to balance the health of its citizens against the need to preserve individual liberties. A state’s health powers will likely protect the action in circumstances where “the person poses a danger to others.”489 Nonetheless, providing employees with a review or appeal process for such actions can ensure employees are treated fairly and receive due process. Thus, any consideration of policies or procedures that implement compulsory leave should include mechanisms for review and/or appeal. 2. Need for Policies and Procedures that Respect Civil Liberties of Passengers The ADA is a far-reaching civil rights law that prohibits discrimination against individuals with disabilities. Although the Act does not specifically address IDOs, “their general prohibitions against discrimination have been interpreted by the Depart- ment of Justice to apply to such situations.”490 Under the construction of an infectious disease as a “disability,”491 local governments must ensure that emergency response activities do not unfairly discriminate against individuals who may be infected.492 Worker refusal to render such services 488 See, e.g., md. Pub. safeTy cOde § 14-3A-03 (West 2016) (stating that, if deemed “medically necessary” for purposes of treatment or prevention of an infectious dis- ease, the Governor may place individuals under isolation or quarantine, request a physical examination, or pro- scribe medical treatment). 489 Daniel S. Reich, Modernizing Local Responses to Public Health Emergencies: Bioterrorism, Epidemics, and the Model State Emergency Health Powers Act, 19 J. cOnTemP. heaLTh L. & POL’y 379, 403 (2003) (citation omitted). 490 Nancy L. Jones, The Americans with Disabilities Act and Emergency Preparedness and Response, 2 Congressional Research Services, RS22254, (Dec. 29, 2010) (citations omitted). 491 See Liability under the Americans with Disabilities Act, Section VII.B.3, supra. 492 Id. 493 See U.S. deParTmenT Of JusTIce cIvIL rIghTs dIvIsIOn, QuesTIOns and answers: The amerIcans wITh dIsabILITIes acT and PersOns wITh hIv/aIds (2012) (classifying HIV and AIDS as a protected “disability” under the ADA and guaranteeing persons with HIV/AIDS to equal access to transportation services). 494 OccuPaTIOnaL heaLTh and safeTy admInIsTraTIOn, emPLOyer resPOnsIbILITIes, available at https://www.osha. gov/as/opa/worker/employer-responsibility.html. 495 Steve Annear, Ebola Scare Shuts Down MBTA Station, Boston Daily, Oct.16, 2014. 496 Id. Liberia experienced an Ebola outbreak in 2014 and 2015; the woman was actually of Haitian descent. 497 Id. Reporting to the scene, MBTA Police Deputy Jim Witzgall stated that extensive news coverage of Ebola had led to “panic” and “hysteria.”