LegiStorm

Summary:

Several West African countries are currently grappling with an unprecedented outbreak of Ebola virus disease (EVD). Here in the United States, where Ebola is not endemic, a handful of EVD cases have been diagnosed, and domestic transmission of the virus has occurred in only two cases to date. This report provides a brief overview of selected legal issues regarding measures to prevent transmission of Ebola virus and the civil rights of individuals affected by the disease. Quarantine and isolation are restrictions on a person's movement, imposed to prevent the spread of contagious disease. The federal government has jurisdiction over interstate and border quarantine, carried out by the Centers for Disease Control and Prevention (CDC). However, primary quarantine authority typically resides with state health departments and health officials. Every state has the authority to pass and enforce quarantine laws as an exercise of its police powers, but these laws may vary widely by state. State and federal quarantine or isolation orders may be subject to suits alleging inadequate due process or violations of equal protection, but modern legal challenges to quarantine and isolation orders are not extensive. In addition to the quarantine and isolation of persons within the United States, some have proposed limiting the entry of persons traveling to the United States from countries experiencing high rates of EVD transmission. Federal agencies' authority to restrict or regulate the entry into the United States of persons who are suspected of carrying Ebola virus or other communicable diseases depends largely upon whether the person is a foreign or U.S. national. Aliens who have been determined to carry Ebola virus may be denied entry, but the health-related grounds for exclusion do not apply to most lawful permanent residents who briefly travel abroad. U.S. citizens abroad may enjoy a constitutional right to reenter the country, in which case the government would be required, at a minimum, to overcome a heavier burden to justify a reentry restriction. Proposals to restrict air travel to and from affected countries—regardless of citizenship—have also been discussed. The Federal Aviation Administration (FAA) has acknowledged its authority to restrict the use of U.S. airspace, but has cautioned that decisions made on a public health basis would involve other federal agencies. Additionally, the Do Not Board (DNB) list provides a mechanism for U.S. and international health officials to request that specific persons be restricted from boarding commercial aircraft to the United States, on the basis that those persons present a public health risk. Independently, airlines may reserve the right to deny transportation to passengers who may pose a safety risk, but must act consistent with federal nondiscrimination laws. The use of these measures to contain the spread of Ebola may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? In addition to the constitutional issues noted above, discrimination against individuals with an infectious disease may be covered by Section 504 of the Rehabilitation Act, the Americans with Disabilities Act (ADA), or the Air Carrier Access Act (ACAA). While quarantine and isolation effectively minimize Ebola exposure, they may also raise various employment concerns, particularly for those workers who fear losing their jobs or wages if they are forced to comply with a quarantine or isolation order. Infected workers may also be protected under the Family and Medical Leave Act (FMLA) if it can be established that they have a serious health condition, and employers whose employees could face workplace exposure to Ebola virus may be obligated to comply with applicable Occupational Safety and Health Administration (OSHA) requirements.