Airport Public Health Preparedness and Response: Legal Rights, Powers, and Duties (2018)

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49 APPENDIX C: CHECKLIST OF LEGAL ISSUES TO CONSIDER IN DEVELOPING AIRPORT COMMUNICABLE DISEASE PREPAREDNESS PLANS Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Recognize that the nature of airport ownership and 1 X X X X governance (e.g., single- or multi-jurisdiction government, airport authority, other public entity, private entity, non-profit) may impact legal responses LEGAL CONSIDERATIONS FOR COMMUNICABLE DISEASE RESPONSE PLANNING Identification and Reporting of Ill Passengers Understand pilots’ obligations under federal regulations 42 C.F.R. § 71.21(b) 2 X X X to report illness or death onboard arriving international flights Understand pilots’ obligations under federal regulations 42 C.F.R. §§ 70.4, 2 X X X X to report suspected communicable disease or death 70.11 onboard interstate flights Understand ICAO notification procedures for international flights with suspected cases of communicable disease 2 X X X Recognize FAA’s role in notifying CDC of suspected communicable disease cases and deaths onboard aircraft 2 X X X X Measures to Detect Communicable Disease Identify areas within airport available for screening activities with minimal disruption to airport operations 2 X X X X Recognize CDC’s power to detain, medically examine, 42 C.F.R. §§ 70.1, 2 X X X X quarantine, isolate, and conditionally release travelers 70.6, 71.1, 71.32(a), entering U.S. and crossing state/territorial borders in order 71.33; Exec. Order to control and prevent spread of quarantinable No. 13,295, 68 Fed. communicable diseases Reg. 17,255 (Apr. 4, 2003), amended by Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005), amended by Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (July 31, 2014) Understand airport-CDC quarantine station relationships and 2 X X X X the roles and logistics of CDC quarantine stations and staff Coordinate with CDC procedures for investigating 42 C.F.R. §§ 70-71 2 X X suspected communicable disease and exposures from flight arrival through examination at quarantine station Delineate roles of airlines, airport personnel, public health 42 C.F.R. §§ 70-71 2 X X officials, and first responders during CDC investigation process at quarantine station

50 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Coordinate with CDC procedures for investigating 42 C.F.R. §§ 70-71 2 X X X suspected communicable disease and exposures from flight arrival at airport without quarantine station through transport to and examination at nearby hospital Delineate roles of airlines, airport personnel, public health 42 C.F.R. §§ 70-71 2 X X X officials, and first responders during CDC investigation process at airport without quarantine station Recognize CDC’s authority to use public health prevention 42 C.F.R. §§ 70.1, 2 X X X X measures such as non-invasive procedures and collection 70.10, 71.1, 71.20 of travelers’ information during communicable disease investigations Contact Tracing Recognize that the CDC quarantine station that first 2 X X X X receives report of an infected passenger (“index case”) will typically coordinate contact tracing in collaboration with local health authorities Understand and provide training on airlines’ responsibilities 42 C.F.R. § 71.4 2 X X X X during CDC-led contact tracing investigations Regulations to Control Communicable Diseases: Isolation & Quarantine Understand requirements and parameters of federal 42 C.F.R. §§ 70.1, 2 X X X X orders for isolation, quarantine, and conditional release 70.6, 70.12, 70.14, 70.15, 70.16, 71.1, 71.1(b), 71.32(a), 71.33, 71.36, 71.37, 71.38, 71.39; Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (Apr. 4, 2003), amended by Exec. Order No. 13,375, 70 Fed. Reg. 17,299 (Apr. 1, 2005), amended by Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (July 31, 2014) Plan logistics of quarantine measures on airport property 2 X X X X (e.g., identify space and facilities that can be used to minimize the impact on operations) Partner with relevant entities (e.g., EMS, law enforcement, 2 X X X local hospitals) to establish procedures for transporting exposed or infected passengers from airports without quarantine stations to local hospitals for examination and evaluation

51 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Partner with relevant entities (e.g., EMS, law enforcement, 2 X X hospitals) to establish procedures for transporting infected passengers from airports with quarantine stations to MOA or other local hospitals for further evaluation or isolation Recognize state, tribal, and local isolation and quarantine 42 C.F.R. § 70.2 2 X X X X powers and the interplay between federal and state powers Decontamination Procedures Recognize decontamination authority of HHS Secretary, 42 U.S.C. § 264(a); 2 X X X X CDC Director, and FDA Commissioner 21 C.F.R. § 1240.30; 42 C.F.R. § 70.2 Recognize CDC’s authority to require disinsection of 42 C.F.R. § 71.44(a) 2 X X X international flights suspected of carrying vector-borne communicable diseases from infected areas Understand responsibility of airlines and pilots to 42 C.F.R. 2 X X X X disinsect aircraft § 71.44(b)-(d) Recognize CDC’s authority to order isolation, quarantine, 42 C.F.R. § 71.32(a) 2 X X X surveillance, disinfection, disinfestation, or fumigation of passengers/crew arriving on international flights who are suspected of exposure to or infection with a quarantinable communicable disease Recognize CDC’s authority to order detention, disinfection, 42 C.F.R. § 71.32(b) 2 X X X disinfestation, fumigation, or other disease control measures of arriving international flights (i.e., aircraft itself or anything onboard) suspected of communicable-disease contamination Coordinate logistics of decontamination procedures 2 X X X X Procure decontamination devices from FEMA 42 U.S.C. 2 X X X X § 5196(i)(4) Safety of Airport Employees Review OSHA coverage of airport employees and 2 X X X X stakeholders; determine applicability of federal or state approved plan Recognize OSHA’s role in providing specific guidance for 2 X X X X the airline industry and airport employees Review and incorporate responsibilities of employers 29 C.F.R. 2 X X X X covered by OSHA §§ 1910.120(b)(1), 1910.1030(g)(2) LEGAL AUTHORITIES FOR ROLES AND RESPONSIBILITIES Airport Authority Responsibilities Consider potential for workers’ compensation claims for 29 U.S.C. § 651 3 X X X X airport employees infected at work; review workers’ compensation coverage

52 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Communications Devise effective communication strategies within and 3 X X X X outside airport, taking into account: (1) internal and external communication as essential components of communication plans for managing communicable disease outbreaks; (2) key role of public information officer as coordinator of external communication; and (3) options for dissemination of accurate, timely, and consistent information to travelers ENSURING PRIVACY AND CONFIDENTIALITY Protected Health Information Understand what constitutes passengers’ PHI and Health Insurance 4 X X X X application of HIPAA Privacy Rule to collection and use of Portability and passengers’ PHI during airport communicable-disease Accountability investigations Act of 1996, Pub. L. 104-191, 110 Stat. 1936 Recognize situations where PHI can be lawfully disclosed 45 C.F.R. § 164.512 4 X X X X without written consent under public health, law enforcement, and serious and imminent threat exceptions to the HIPAA Privacy Rule Protection of Privacy Interests Understand the requirements for a reasonable, U.S. Const. amends. 4 X X X X constitutional search or seizure and relevant exceptions to IV, XIV; Schneckloth these requirements v. Bustamonte, 412 U.S. 218 (1973); Missouri v. McNeely, 569 U.S. 141 (2013); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016); Almeida-Sanchez v. U.S., 413 U.S. 266 (1973); U.S. v. Flores- Montano, 541 U.S. 149 (2004); U.S. v. Montoya de Hernandez, 473 U.S. 531 (1985); U.S. v. Hartwell, 436 F.3d 174 (3d Cir. 2006); Corbett v. Transportation Security Admin., 767 F.3d 1171 (11th Cir. 2014); Griswold v. Connecticut, 381 U.S. 479 (1965); U.S. v. Oriakhi, 57 F.3d 1290 (4th Cir. 1995)

53 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Recognize and train airport personnel regarding U.S. Const. amends. 4 X X X X passengers’ privacy rights and the application of IV, XIV; 42 C.F.R. constitutional protections against unreasonable search §§ 70.6(a), 71.32(a); and seizure to isolation and quarantine procedures 42 U.S.C. § 264; Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016); Chandler v. Miller, 520 U.S. 305 (1997) Recognize and provide training on potential liability of 5 U.S.C. § 552a(g); 4 X X X X governmental entities under Privacy Act for mishandling Cochran v. United of passengers’ personal information States, 770 F.2d 949 (11th Circ. 1985); Fanin v. U.S. Dep’t of Veterans Affairs, 572 F.3d 868 (11th Cir. 2009); Perry v. Bureau of Prisons, 371 F.3d 1304 (11th Cir. 2004); Speaker v. U.S. Dep’t of Health and Human Services, 680 F. Supp. 2d 1359 (N.D. Ga. 2009, rev’d and remanded, 623 F.3d 1371 (11th Cir. 2010), aff’g the district court’s grant of summary judgment to appellee, 489 F. App’x 425 (11th Cir. 2012 (per curiam) Recognize and train employees on potential liability for Romaine v. Kallinger, 4 X X X X invasion of privacy 537 A.2d 284 (N.J. 1988); Leang v. Jersey City Bd. Of Educ., 969 A.2d 1097 (N.J. 2009); Cibenko v. Worth Publishers, Inc., 510 F. Supp. 761 (D.N.J. 1981); Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) Understand and provide employee training on flexibility Hickox v. Christie, 4 X X X regarding detention of travelers in international airports 205 F. Supp. 3d 570 during PHEs and potential civil liability of airport personnel (D.N.J. 2016)

54 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station Due Process Protections Train airport personnel on detention and screening of U.S. Const. amends. 4 X X X X passengers in accordance with constitutional due process, V, XIV; Hickox v. including establishing protocols and objective criteria to Christie, 205 F. Supp. prevent arbitrary actions 3d 579 (D.N.J. 2016) Train airport personnel on potential civil liability for 42 U.S.C. § 1983; 4 X X X X deprivation of passengers’ rights and consider privacy and Wagner v. Metro. autonomy concerns when determining screening locations Nashville Airport and logistics Auth., 772 F.2d 227 (6th Cir. 1985) Train airport personnel on potential civil liability for Hickox v. Christie, 4 X X X X false imprisonment of passengers and related 205 F. Supp. 3d quarantine immunity 579 (D.N.J. 2016); Restatement (Second) of Torts §§ 35, 36 (Am. Law Inst. 1977) THE CHANGING LEGAL ENVIRONMENT DURING PUBLIC EMERGENCIES Federal Declaration of Emergency Recognize federal power to respond to emergencies Stafford Act, 42 5 X X X X through various declarations and potential implications U.S.C. §§ 5121-5207; of these declarations (e.g., emergency use authorization National Emergencies of unapproved drugs, waiver of licensure requirements) Act, 50 U.S.C. §§ 1621, 1622, 1631; Public Health Service Act, 42 U.S.C. § 247d; Public Readiness and Emergency Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e; Pandemic and All-Hazards Preparedness Reauthorization Act of 2013, 21 U.S.C. § 301; Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301-399h; 42 U.S.C. § 1320b-5; 21 U.S.C. § 360bbb-3 Understand NIMS and NRF as frameworks for addressing 5 X X X X potential and actual emergencies across the U.S. State, Local, and Tribal Emergency Declarations and Responses Recognize states’ authority to address PHEs 5 X X X X Recognize tribal authority to declare emergencies resulting 42 U.S.C. § 5121 5 X X X X from events on tribal land and request presidential declarations of emergency

55 Consideration Relevant Ch. # Airport Airport Airport Airport Law Direct Dom. With Without Int’l Flight Quar- Quar- Flight Only antine antine Station Station POTENTIAL LIABILITY AND PROTECTIONS Public Readiness and Emergency Preparedness Act Recognize and provide training on available limitations on Public Readiness and 6 X X X X liability for claims of loss related to administration or use Emergency of countermeasures through PREP Act declarations Preparedness Act, 42 U.S.C. §§ 247d-6d, 247d-6e Federal Volunteer Protection Act Recognize scope of liability protection for volunteers Federal Volunteer 6 X X X X of governmental entities and nonprofit organizations Protection Act under VPA of 1997, 42 U.S.C. §§ 14501-14505 Uniform Emergency Volunteer Health Practitioners Act Understand provision of services by and liability 6 X X X X protections for volunteer health professionals with out-of-state licenses in states adopting UEVHPA Model State Emergency Health Powers Act Understand use of public health powers by state and 6 X X X X local public health officials during PHEs and related limited liability of states and individuals in states adopting MSEHPA Other State Volunteer Protections Understand resource sharing (including licensed 6 X X X X out-of-state healthcare providers) among U.S. states and territories during disasters and related liability protection under EMAC Understand Good Samaritan laws and liability protections; Aviation Medical 6 X X X X ensure training and information to employees Assistance Act of 1998, 49 U.S.C. § 44701 Equipment, Planning, and Training Plan to use post-incident evaluations to improve existing 6 X X X X communicable-disease response plans Recognize employers’ duty to provide safe workplace and Occupational Safety 6 X X X X follow standard of care under OSHA, consider potential and Health Act of trainings and equipment necessary to respond to 1970 (OSHA), communicable disease outbreak. 29 U.S.C. § 651 Understand and train airport personnel on qualified 6 X X X X immunity and civil liability