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

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4officials may be in charge of the response, whereas at other times, federal health officials may lead the response. Understanding these different structures is key to a transit agency’s IDO response: the better working relationships that a transit agency has with its counterparts, the more likely that timely, actionable decisions will be made. B. Digest Overview This digest begins with a background of the laws, statutes, and (where relevant) case law that comprise the PHE response framework, both nationally and at the state and local level. It then examines specific responses that may be used during an IDO response, including closures of major traffic generators, suspension of service, screening and prescreening measures, quarantine and isolation, employee protocols and worker safety, and disinfection and infection control measures. It is important to note that a number of these measures—in fact, most of them—will likely be initiated by public officials other than transit agencies, although transit agen- cies will be expected to help with implementation. Thus, much of this digest focuses on the roles and responsibilities of actors outside of transit agencies and notes areas in which transit agencies possess analogous powers. II. LEGAL BACKGROUND Transit oversight is a complex regulatory frame- work that involves both federal and state actors. Likewise, public health powers arise at the federal, state, and local level. An IDO such as Ebola will necessarily involve many or most of these actors working together, possibly while facing novel issues5 or an unknown disease. Thus, in order to fully under- stand the legal issues that arise out of infectious disease emergencies and transportation, as well as the actors involved, an overview of these powers is necessary. This section will provide a brief overview of state powers and sources of authority, as well as federal powers. It will also highlight key federal statutes or laws that may affect an infectious disease response. These regulations, laws, and policy direc- tives will be discussed more in-depth where relevant in the following sections. A. Overview of State Powers 1. State Sources of Authority In the United States, ensuring public health, including disease control measures, has always fallen to local and state authorities, who derive their power from the U.S. Constitution, state constitu- tions, and state statutes. a) Police Powers in the U.S. Constitution State powers to protect their citizens have been well-established. The police powers, reserved for states in the Tenth Amendment,6 give each state broad powers to protect the health, welfare, and safety of its citizens. This right was famously upheld in Jacobson v. Massachusetts,7 a case in which a Massachusetts resident contested the right of the state to statutorily compel smallpox vaccination. The Supreme Court wrote that: Although this court has refrained from any attempt to define the limits of that [Tenth Amendment] power, yet it has distinctly recognized the authority of a state to enact quaran- tine laws and ‘health laws of every description;’ indeed, all laws that relate to matters completely within its territory and which do not by their necessary operation affect the people of other states. According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.8 Even prior to Jacobson, the Supreme Court upheld a State Board of Health’s right to quarantine seven parishes during an unspecified epidemic,9 stating that “from an early day the power of the states to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants has been recognized by Congress.”10 In addition to the U.S. Constitution, states may grant public health powers through state constitutional or statutory provisions. These statutes outline more explicitly the powers of specific officials to act to protect public health safety, as well as procedures for doing so. Such actors typi- cally include state governors, state health officials, and local health officers or local boards of health. b) State Constitutional Powers Most state constitutions specify the right of the state to create laws to protect the health of its 6 U.S. cOnsT. amend. X, which states, “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.” 7 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905). 8 Id. at 25. 9 Campagnie Francaise de Navigation A Vapeur v. Louisiana State Board of Health, 186 U.S. 380, 22 S. Ct. 811, 46 L. Ed. 1209 (1902). 10 Id. at 387. 5 During the Ebola outbreak, federal and state health and transportation officials faced challenges regarding permits for the transportation of medical waste. See Transportation.gov., U.S. Dep’t. Trans., Briefing Room, U.S. Department of Transportation Approves Special Permit for the Safe Transport of Ebola Infected Medical Waste for Disposal (Oct. 3, 2014), https://www.transportation.gov/ briefing-room/us-department-transportation-approves- special-permit-safe-transport-ebola-infected.

5citizens. For example, the Constitution of the State of New York states that the “protection and promo- tion of the health of the inhabitants of the state are matters of public concern and provision there- for shall be made by the state and by such of its subdivisions and in such manner, and by such means as the legislature shall from time to time determine.”11 c) State Statutory Powers State statutes outline more explicitly the powers of specific officials to act to protect public health safety, as well as procedures for doing so. For exam- ple, states have departments of health and desig- nated health officials, who have the duty to protect the health and safety of their citizens and to create rules and regulations to do so. Some of these laws relate to specific powers, such as quarantine and isolation powers. Others may be a part of a larger statutory scheme, such as governors’ emergency powers acts or public health emergencies acts.12 These acts, and the powers they convey, are discussed in the following section. (1) Governors’ Powers All states grant their governors the power to declare a state of emergency for either man-made or natural disasters. Extraordinary powers accompany this declaration and typically allow a governor to deploy resources, expend funds for response efforts and resources, order evacuations and control the movement of people, seize property, and (in some cases) suspend the effect of statutes as necessary to respond to the emergency.13 Most states, in addition to enumerating certain emergency powers, include a broad grant of power to the governor, such as the ability to “[u]tilize all available resources of the state government and of each political subdivision of the state, as reasonably necessary to cope with the emergency” and to “[t]ransfer the direction, person- nel, or functions of state departments and agencies or units thereof for the purpose of performing or facilitating emergency services.”14 Almost all states impose a time limit on emer- gency declarations, usually 30 days.15 The governor has the option of renewal for successive periods, however, as long as the emergency continues. This may be at the governor’s discretion, but many states specify protections to avoid abuse. In Maryland, for example, the General Assembly can issue a joint resolution terminating a state of emergency.16 In South Carolina, a declared state of emergency can only last 15 days without consent of the state’s General Assembly.17 In addition, some states, such as New Jersey and New Mexico, specify that a governor may also declare a PHE.18 Most states that allow governor- declared PHEs s specify that a governor should do so in consultation with the state health official.19 Finally, although the ability to declare a PHE may rest with the governor, most actions taken under that declaration are specified as the duties of the state health official.20 11 N.Y. cOnsT. art. XVII § 3. Rarely, a state’s constitution may also specify the ability of the governor to declare a catastrophic disaster, including a PHE. See e.g. Or. cOnsT. art. X-A, § 1. Oregon’s constitution similarly enumerates a governor’s powers, use of funds, and procedural and legisla- tive requirements for a governor-declared catastrophic disaster. See Or. cOnsT. art. X-A, §§ 2–4. Such measures, though common in statutes, are rare in a state constitution. 12 Nearly 40 states have provisions that are in part based on the Model State Emergency Health Powers Act (MSEHPA), which was drafted in 2001 to provide states with a model to address modern PHEs. However, because states’ adaptations were piecemeal, state-to-state variation occurs. cenTer fOr Law and The PubLIc’s heaLTh, mOdeL sTaTe emergency heaLTh POwers acT, as Of december 21, 2001, available at http://www.publichealthlaw.net/ MSEHPA/MSEHPA.pdf, (last visited Sept. 1, 2016). For additional discussion on the MSEHPA, see Mark A. Rothstein, From SARS to Ebola: Legal and Ethical Consid- erations for Modern Quarantine, 12 Ind. heaLTh L. rev. 227, 239–242 (2015). 13 See, e.g., mOnT. cOde ann. § 10-3-104(2) (2016); Or. rev. sTaT. § 433.441 (2016). 14 fLa. sTaT. ann. § 252.36(5)(b-c) (2016). 15 See, e.g., N.J. rev. sTaT. § 26:13-3 (2016) (“Any public health emergency declared pursuant to this act shall be terminated automatically after 30 days unless renewed by the Governor”); Tx. heaLTh & safeTy cOde ann. § 81.082(d) (2016) (“A declaration of a public health disaster may continue for not more than 30 days” without renewal, but the governor may “terminate a declaration of a public health disaster at any time.”). 16 md. cOde ann., Pub. safeTy § 14-101 (2016). 17 S.C. cOde ann. § 25-1-440 (2016). Conversely, in Florida, a declaration may last 60 days before automatically termi- nating, unless renewed by the governor. fL. sTaT. ann. § 252.36 (2) (2016). The state legislature may terminate a declaration by concurrent resolution. Id. 18 N.J. rev. sTaT. § 26:13-3 (2016); N.M. STAT. § 12-10A-5 (2016). 19 N.M. sTaT. § 12-10A-5 (2016) (“Prior to a declaration of a state of public health emergency, the governor shall consult with the secretary of health.”); S.C. cOde ann. § 25-1-440 (2016) (“prior to the declaration of a public health emergency, the Governor must consult with the Public Health Planning Committee and may consult with any public health agency and other experts as necessary. Nothing herein shall be construed to limit the Governor’s authority to act without such consultation when the situ- ation calls for prompt and timely action.”). 20 See, e.g., N.M. sTaT. § 12-10A-6 (2016) (listing special powers of the state secretary of health during a declared public health emergency).

6(2) State Health Official’s Powers21 Many health-specific powers are granted to the executive state health official, whether during a declared PHE or not. For example, Louisiana grants its state health official the exclusive jurisdiction, control, and authority: (1) To isolate or quarantine for the care and control of communicable disease within the state. (2) To take such action as is necessary to accomplish the subsidence and suppression of diseases of all kinds in order to prevent their spread. (3) To enforce a sanitary code for the entire state containing provisions for the improvement and amelioration of the hygienic and sanitary conditions of the state. …. (10) Over the reporting of communicable diseases. …. (12) Over the providing of facilities for vaccination. (13) To assist in the supervision and operation of parish and municipal health units and departments.22 In general, state health officials are granted the power to “take action to prevent the introduction of infectious or contagious disease into [a] state and to prevent the spread of infectious or contagious disease within [a] state.”23 During a declared public health (sometimes called a catastrophic) emergency, state health officials may take additional measures to control the spread of infectious disease, such as disease surveillance, compelled medical testing and treatment, quarantine and isolation, and the testing and decontamination of contaminated property, as well as the power to control and utilize healthcare providers.24 In addition, some states grant state health officials the right to declare a PHE.25 B. Overview of Federal Powers Although states may remain primary public health actors, federal powers and laws may affect state and local responses during a PHE, such as an IDO. The first exercise of federal public health powers occurred in 1878, when widespread outbreaks of yellow fever forced the U.S. Congress to pass federal quarantine legislation.26 Federal public health laws remain less extensive than state laws; nonetheless, many laws, acts, and directives provide a basis for emergency and PHE response. These are discussed in the following section. 1. Constitutional Authority Federal authority to act during a PHE and to pass federal public health laws comes primarily from the Commerce Clause in the Constitution,27 which gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.”28 This has been interpreted to allow Congress to “regulate and protect the instrumentalities of interstate commerce or persons or things in interstate commerce;….”29 The interstate nature of communicable and infec- tious disease outbreaks makes regulation under the Commerce Clause appropriate. The Commerce Clause provides the authority for numerous stat- utes and acts, such as the Public Health Service Act (PHSA)30 and the Pandemic and All-Hazards Preparedness Act,31 which provide federal health officials with their authority. Federal authority to act during a PHE could also come from the Insurrec- tion Acts.32 The Insurrection Acts authorize the President, without the prior consent of a state, to direct the armed forces (including the National Guard) to suppress insurrections and domestic violence that threaten the authority of the United States and hinder the enforcement of state or U.S. laws, such that the constitutional rights of citizens are violated.33 21 Nomenclature for the executive state health official varies state to state (most commonly, Secretary of Health or State Health Commissioner). Unless referring to a specific statute, this report will refer to all state health department agency heads as the state health official. 22 LA. rev. sTaT. § 40:5 (2016). 23 Kan. sTaT. ann. §§ 65–101 (2016). 24 See, e.g., md. cOde ann., heaLTh–gen. 18-905 (2016). 25 See, e.g., S.D. cOdIfIed Laws § 34-22-42 (2016) (“The secretary of health, with the consent of the Governor, may declare a public health emergency.”). 26 Centers for Disease Control and Prevention, History of Quarantine, www.cdc.gov/quarantine/historyquarantine. html (last visited Aug. 23, 2016). 27 U.S. cOnsT. art. I § 8, cl. 3. 28 Id. 29 U.S. v. Lopez, 514 U.S. 549, 558, 15 S. Ct.1624, 1629, 131 L. Ed. 2d 626, 637 (1995). 30 Pub. L. No. 78-410, 58 Stat. 682 (1944). 31 Pub. L. No. 109-417, 120 Stat. 2831, (2006). 32 Insurrection Acts, 10 U.S.C. §§ 331–335. 33 Id. Another source of potential power includes the Posse Comitatus Act, which prohibits using “any part of the Army or Air Force … to execute the laws.” Posse Comitatus Act, 20 Stat. 152, ch. 263, § 15 (1878). It has been expanded to include all active duty military personnel (including active duty Reservists and National Guard personnel in federal service). See deP’T Of defense dIrecTIve 3025.15, mILITary assIsTance TO cIvILIan auThOrITIes (Feb. 18, 1997). It has drawn attention in recent years for its potential ability to allow the military to support the local authorities in disaster assistance. The discussion has centered on Hurricane Katrina. See, e.g., Jessica DeBianchi, Military Law: Winds of Change—Examining the Present-Day Propriety of the Posse Comitatus Act after Hurricane Katrina, 17 U. fLa. J. L. & Pub. POL’y 473 (2006).

7At the federal level, two key actors may affect transit during a PHE, such as an IDO. These include the President and the Secretary of the Department of Health and Human Services (HHS). However, myriad other agency secretaries or administrators have powers that may be leveraged during an IDO.34 2. Presidential Powers and Policy Guidance The President has the ability to declare a national emergency under the National Emergencies Act (NEA).35 Such a declaration is a prerequisite to exer- cising any special or extraordinary powers that are statutorily authorized to respond to the emergency. A joint resolution can terminate the emergency.36 The President, in declaring an emergency, must state which emergency laws he or she will use to respond to it. Under the NEA, no powers or authorities made available by statute for use in the event of an emergency shall be exercised unless and until the President specifies the provisions of law under which he proposes that he, or other officers will act. Such specification may be made either in the declaration of a national emergency, or by one or more contemporaneous or subsequent executive orders.37 These declarations are rare: President George W. Bush declared a state of emergency after the September 11, 2001 terrorist attacks, and President Barack Obama declared a state of emergency for the 2009 H1N1 influenza pandemic. In addition, the President has the power to desig- nate quarantine communicable diseases that the Secretary of HHS may then act to control. This is done through Presidential Executive Order (EO) 13,295.38 EO 13,295 lists the quarantine communi- cable diseases; if a disease is not mentioned in the EO, then the President must amend the EO to include the new disease. This was done most recently in 2014, when the President added “[i]nfluenza caused by new or re-emergent flu viruses that are causing, or have the potential to cause, a pandemic; and severe acute respiratory syndromes.”39 In addition, current quar- antinable diseases include: “Cholera; Diphtheria; infectious Tuberculosis; Plague; Smallpox; Yellow Fever; and Viral Hemorrhagic Fevers (Lassa, Marburg, Ebola, Crimean-Congo, South American, and others not yet isolated or named).”40 Finally, the President can set policies and goals by using Presidential Directives. For example, Homeland Security Presidential Directive No. 5 (HSPD-5) directs the Department of Homeland Security (DHS) to enhance the nation’s ability to “manage domestic incidents by establishing a single, comprehensive national incident management system.”41 HSPD-5 tasks the Secretary of DHS with developing a National Incident Management System and National Response Plan, now known as the National Response Framework. Presidential Policy Directive No. 8 (PPD-8)42 calls for the development of an overarching National Preparedness Goal that identifies the core capabilities necessary for preparedness and guides activities that will enhance the nation’s preparedness and resilience to U.S. security risks, including pandemics.43 These policies have the ability to set policy and planning priorities that directly affect state and local emergency plan- ning efforts. 3. Secretary of the Department of Health and Human Services The Secretary of HHS has the broad authority to develop and enforce regulations necessary to prevent the introduction or spread of communica- ble disease from foreign countries into the United States or between states.44 The Secretary can apprehend, detain, or conditionally release individ- uals with communicable diseases. In addition, the Secretary is authorized to declare a PHE in certain circumstances45 and has designated powers and authorities under such a declared emergency, including the ability to take “such action as may be appropriate to respond to the PHE, including making grants, providing awards for expenses, entering into contracts, and conducting and supporting investigations into the cause, treat- ment, or prevention of a disease or disorder.”46 The Secretary also enforces regulations for the medical 34 For an abbreviated discussion of relevant federal acts, see Federal Laws at a Glance, Section II.D. For more discussion on the role federal acts play in transit and emergency response planning, see Nicholas Thomizawa, LegaL Issues In PubLIc TransIT emergency PLannIng and OPeraTIOn, (Legal Research Digest No. 44, Transit Coop- erative Research Program, Transportation Research Board, 2013). 35 National Emergencies Act (NEA) Pub. L. No. 94-412, 90 Stat. 1255 (1976), (codified at 50 U.S.C. §§ 1601–1651). 36 50 U.S.C. 1622(a) (2016). 37 50 U.S.C. 1631. 38 Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (2003). 39 Exec. Order No. 13,674, 79 Fed. Reg. 45,671 (2014). 40 Exec. Order No. 13,295, 68 Fed. Reg. 17,255 (2003). 41 Homeland Security Presidential Directive 5, (Feb. 28, 2003). For additional discussion on HSPD-5, PPD-8, and the National Response Framework, see Nicholas Thomizawa, LegaL Issues In PubLIc TransIT emergency PLannIng and OPeraTIOn, Transit Cooperative Research Program (Legal Research Digest No. 44, Transportation Research Board, 2013). 42 Presidential Policy Directive 8, (Mar. 30, 2011). 43 Id. 44 PHSA, ch. 373. 45 PHSA, as amended, Pub. L. No. 104-321, 110 Stat. 3877 (1996) (codified as amended at 42 U.S.C. § 247d). 46 42 U.S.C. § 247d.

8examination of aliens seeking admission into the United States.47 In addition, the HHS Secretary is charged with “further develop[ing] and implement[ing] a coordi- nated strategy [ . . . ] for carrying out health-related activities to prepare for and respond effectively to bioterrorism and other public health emergencies, including the preparation of a plan.”48 The Secretary and HHS are required to “lead all Federal public health and medical response to public health emer- gencies and incidents covered by the National Response [Framework].”49 4. Secretary of the U.S. Department of Transportation The Secretary of the U.S. Department of Transpor- tation (U.S. DOT) may authorize the exclusion of all vessels from a security zone whenever the President declares a national emergency.50 The Secretary, with the approval of the President, can make rules and regulations that govern the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States; inspect such vessel at any time; and take, with the consent of the President, full possession and control of such vessel and remove therefrom the officers and crew and all other persons.51 5. Transportation Security Administration Under Secretary for Security The Under Secretary for Security is the head of the Transportation Security Administration (TSA). The Under Secretary has the authority to coordi- nate transportation during an emergency and to “carry out such other duties, and exercise other such powers” as necessary, in coordination with the U.S. DOT or DHS.52 Such coordination can include the movement and routing of trains and traffic on interstate roads, and includes the ability, “if the Under Secretary determines that a regulation or security directive must be issued immediately in order to protect transportation security,” to “issue the regulation or security directive without provid- ing notice or an opportunity for comment and 47 PHSA, ch. 373; see also Centers for Disease Control and Prevention (CDC), Medical Examination of Immigrants and Refugees, available at http://www.cdc.gov/immigrant refugeehealth/exams/medical-examination.html (last visited Jun. 23, 2016). 48 Public Health Security and Bioterrorism Prepared- ness and Response Act of 2002, Pub. L. No. 107-188, 116 Stat. 597 (codified at 42 U.S.C. 300hh). 49 Id. 50 50 U.S.C.A. § 191. “Vessel” as referenced here, and throughout this digest, typically refers to ships. 51 Id. 52 49 U.S.C. 114(g)(1)(D). 53 49 U.S.C. 114(l)(2)(A). 54 49 U.S.C. § 44905(b). 55 49 C.F.R. § 211.45. 56 Id. 57 49 C.F.R. § 601.41. Often, in declared emergencies, this waiver is most commonly invoked for emergency contracting purposes. See Federal Transit Administration, Emergency Relief Manual, Sept. 30, 2015, available at https://www. transit.dot.gov/sites/fta.dot.gov/files/docs/FTA_Emergency_ Relief_Manual_and_Guide_-_Sept_2015.pdf. 58 33 U.S.C.A. § 1226(a). without prior approval of the Secretary.”53 In addi- tion, the Under Secretary has the authority to cancel a flight or prevent planes from landing if “a decision is made that a particular threat cannot be addressed in a way adequate to ensure, to the extent feasible, the safety of passengers and crew of a particular flight or series of flights.”54 Although this pertains to security threats, a PHE such as an IDO may justify use of these powers. 6. Federal Railroad Administration Administrator The U.S. DOT Federal Railroad Administration (FRA) Administrator can issue emergency declara- tions for emergency events55 in the case of a natural or manmade disaster that poses a risk of death, seri- ous illness, severe injury, or substantial property damage. The disaster may be local, regional, or national in scope. An issuance of the declaration can lead to the waiver of certain FRA safety rules, regu- lations, or standards.56 7. Federal Transit Administration Administrator The U.S. DOT Federal Transit Administration (FTA) Administrator may, “[i]n the case of a national or regional emergency or disaster, or in anticipation of such a disaster,” approve petitions from “any FTA grantee or subgrantee [. . .] for temporary relief from the provisions of any policy statement, circular, guidance document or rule.”57 8. Secretary of the Department of Homeland Security In addition to coordinating with the Centers for Disease Control and Prevention (CDC) and the U.S. Customs and Border Protection (CBP), the Secre- tary of DHS has broad powers to “prevent and respond to an act of terrorism” against a vessel that is “subject to the jurisdiction of the United States and located within or adjacent to the marine envi- ronment; or a vessel of the United States or an indi- vidual on board that vessel.”58 The Secretary of DHS may do so by carrying out measures, “including inspections, port and harbor patrols, the establish- ment of security and safety zones, and the develop- ment of contingency plans and procedures, to prevent or respond to acts of terrorism.”

9C. Additional Federal Laws Many federal public health laws influence trans- portation personnel, conveyances, and commerce; many transportation laws may similarly address public health matters. For example, the master of a vessel or the person in charge of any conveyance that is 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.65 Any person who is in the commu- nicable period of certain communicable diseases,66 or has been exposed to certain diseases, is prohibited from traveling on a conveyance engaged in interstate traffic without a written permit of the Surgeon General or his or her authorized representative.67 Likewise, the operator of any conveyance engaged in interstate traffic should not knowingly transport any person who fails to present a required permit. If the person is transported on the conveyance, the opera- tor may have to take certain actions, such as submit- ting the conveyance to inspection and disinfection.68 D. Federal Laws at a Glance Public Health Service Act (PHSA) • Authorizes the Secretary of HHS to declare a PHE in certain circumstances. • Provides for the Secretary’s powers and authorities during a PHE declared under the PHSA. • Does not require affected jurisdictions to formally request federal assistance before such assistance can be given under the PHSA. • Grants the Secretary the broad authority to develop and enforce the regulations necessary to prevent the introduction or spread of communicable disease from foreign countries into the United States or between states. The Secretary can apprehend, detain, or conditionally release individuals with such communicable diseases. 59 33 U.S.C.A. § 1226(a) & (b)(1). At times when the Coast Guard is operating in the services of the Navy, these powers are transferable to the Secretary of the Navy. See 14 U.S.C. § 3. 60 Jared Cole, Federal and State Quarantine Isolation Authority, Congressional Research Service, (October 9, 2014). 61 42 C.F.R. §§ 70–71. A port or point of entry is a place designated by DHS at which an alien may apply to the DHS for admission into the United States. 22 C.F.R. § 40.1. There are 328 ports of entry throughout the country (air, sea, and land entries). See U.S. Customs and Border Protec- tion (CBP), Ports of Entry, available at https://www.cbp.gov/ border-security/ports-entry (last accessed Jun. 23, 2016). 62 Department of Transportation, resPOnse and recOvery fOr decLared emergencIes and dIsasTers: a resOurce dOcumenT fOr TransIT agencIes, (Jun. 2013), https://www. transit.dot.gov/sites/fta.dot.gov/files/docs/Response_and_ Recovery_for_Declared_Emergencies_and_Disasters_ 062813.pdf. 63 Id. 64 Id. The FTA administers the Emergency Relief Program, which helps public transportation systems pay for the protection, repair, or damages resulting from an emergency or natural disaster, including operating costs for evacuations, rescue operations, and temporary services and routes. For more, see Id. Although these agencies may have a part in an IDO response, additional agencies may also have a role. Likely agencies are discussed in the following section.59 9. Additional Key Federal Agencies In 2000, the Secretary of HHS transferred quaran- tine authority to the Director of the CDC. Now, both interstate and foreign quarantine measures are carried out by the CDC’s Division of Global Migration and Quarantine.60 This includes the operation of 20 quarantine stations at select ports/points of entry (POEs) and the administration of regulations that govern the movement of people, animals, cargo, and conveyances into the United States.61 The Division of Global Migration and Quarantine can detain, medi- cally examine, or conditionally release individuals at POEs who are reasonably believed to be carrying a communicable disease of public health significance. Because of its position at POEs, the CDC works closely with CBP, as well as DHS and TSA. Some interagency roles and responsibilities are specified in writing. For example, U.S. DOT and DHS have a Memorandum of Understanding (MOU) that DHS, through the Federal Emergency Management Agency (FEMA), has primary responsibility for trans- portation emergency preparedness and response, and that U.S. DOT has a supporting role of technical assistance.62 U.S. DOT’s supporting roles include reporting damage to transportation infrastructure, coordinating alternate transportation services, and coordinating the restoration and recovery of the transportation infrastructure.63 Similarly, FTA and FEMA have an MOU regarding reimbursement of emergency response and recovery costs.64 65 42 C.F.R. § 70.4. 66 The diseases include cholera, plague, smallpox, typhus, or yellow fever. Id. 67 42 C.F.R. § 70.5. 68 Id.

10 Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Bioterrorism Bill) • Aims to “improve the ability of the United States to prevent, prepare for, and respond to bioterrorism and other public health emergencies.” • Requires the Secretary of HHS to “develop and implement” a coordinated strategy in the form of a national preparedness plan. Pandemic and All-Hazards Preparedness Act (PAHPA) • Requires HHS and its Secretary to lead all federal public health and medical response to PHEs and incidents covered by the National Response Framework. The U.S. Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act) • Establishes the programs and processes for the federal govern- ment to provide disaster and emergency assistance to states, local governments, tribal nations, individuals, and qualified private nonprofit organizations. • Requires a governor to declare a state of emergency and request assistance from the federal government. Homeland Security Act of 2002 • Creates and confers DHS with authority over most federal disaster preparedness and response activities. Homeland Security Presidential Directive-5 • Directs DHS to enhance the nation’s ability to “manage domestic incidents by establish- ing a single, comprehensive national incident management system.” • Tasks the Secretary of Homeland Security with developing a National Incident Management System and National Response Plan (Framework). Presidential Policy Directive-8 • Calls for the development of an overarching National Preparedness Goal that identifies the core capabilities necessary for preparedness. • Requires the establishment of a National Preparedness System to guide activities that will enable the United States to achieve the directive’s goals and to undertake a comprehensive campaign to build and sustain preparedness efforts across the United States. National Emergencies Act • Establishes procedures for Presidential declaration and termination of national emergencies. Commerce Clause • Gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” • Allows Congress to “regulate and protect the instrumentalities of interstate commerce or persons or things in interstate commerce[.]”. • Provides the authority for federal quarantine powers, and other statutes that authorize federal government action during a disaster or emergency. Posse Comitatus Act • States that active-duty military personnel (including active-duty Reservists and National Guard personnel in federal service) must not be directly involved in traditional law enforcement activities unless authorized by the U.S. Constitution or an act of Congress. Insurrection Acts • Authorizes the President, without the prior consent of a state, to direct the armed forces (including the National Guard) to suppress insurrections and domestic violence that threaten the authority of the United States and opposes the enforcement of state or U.S. laws such that the constitutional rights of citizens are violated. Presidential Executive Order 13,295 • Specifies certain communicable diseases for regulations that provide for the apprehension, detention, or conditional release of individuals to prevent the introduction, transmission, or spread of suspected communicable diseases. E. Employment Issues—Federal Protections Federal protections for transit agency employees may arise during an IDO or PHE. The primary protections are contained in the Occupational Safety and Health Administration (OSHA) requirements D. Federal Laws at a Glance, continued

11 for working conditions, as well as federal leave acts that provide employees with the ability to take leave if they are ill or need to care for ill family members. 1. Occupational Safety and Health Administration OSHA establishes safe and healthy working conditions by setting and enforcing standards and by providing training, outreach, education, compli- ance, and assistance for employees and employers. There are several OSHA standards and directives applicable to protecting workers against the trans- mission of infectious agents. These standards include the Bloodborne Pathogens69 regulation, which provides for protection of workers from expo- sure to blood and body fluids that may contain bloodborne infectious agents; the Personal Protec- tive70 and Respiratory Protection71 regulation, which provides some protection for workers when they are exposed to infectious agents transmitted through ways other than the bloodborne route; and the Tuberculosis (TB) compliance directive, which protects workers to a certain degree against expo- sure to TB through enforcement of existing applica- ble OSHA standards and special notices, directives, and letters of interpretation.72 All of these may become important in an IDO. 2. Family and Medical Leave Act and Family Friendly Leave Act The Family and Medical Leave Act (FMLA)73 provides employees who meet certain criteria with up to 12 weeks of unpaid leave a year, with health benefits to be maintained during leave and job resto- ration after leave.74 In case of disaster, employees are entitled to leave under FMLA for a serious health condition caused by the disaster. In addition, employees who must care for a child, spouse, or parent with a serious health condition caused by the disaster may also be entitled to leave under FMLA.75 The Family Friendly Leave Act (FFLA)76 similarly provides unpaid, job-protected leave for general family care and bereavement purposes.77 F. Airports and Air Travel Because of its international nature, U.S. air travel is subject to numerous acts that prove instructive when considering responses to an IDO. The follow- ing section briefly highlights relevant portions. 1. The Air Carrier Access Act The Air Carrier Access Act78 prohibits discrimi- nation on the basis of disability in air travel and requires air carriers to accommodate the needs of passengers with disabilities. Airlines have the general authority to refuse to board qualified passengers with communicable diseases under certain circumstances when there is a direct threat to the health or safety of others.79 In determining whether a passenger poses a “direct threat,” a carrier must rely on guidance from public health agencies, such as the CDC or the World Health Organization (WHO), as well as consider the conse- quences of the disease and the likelihood of trans- mission through casual contact.80 If reasonable modifications to policies can mitigate the risk of transmission and such modifications are possible and specified by a physician’s certificate, then the airline cannot refuse to provide transportation.81 It can, however, require a passenger to undergo “addi- tional medical review” if the passenger’s condition appears to have significantly changed since the date of the physician’s certificate.82 2. Federal Aviation Administration Authority to Restrict Airport Access or Airspace 83 The Federal Aviation Administration (FAA) has authority to stop, redirect, or exclude flights in U.S. airspace for public safety and to restrict airport access due to emergency conditions on the ground. The FAA Administrator may “prescribe regulations and issue orders immediately to meet the emergency.”84 77 Office of Personnel Management, Pay & Leave: Leave Administration, Fact Sheet: Sick Leave for Family Care or Bereavement Purposes, https://www.opm.gov/ policy-data-oversight/pay-leave/leave-administration/ fact-sheets/sick-leave-for-family-care-or-bereavement- purposes/. For additional information on FMLA and FFLA, see § VII herein. 78 Pub. L. No. 99-435, 100 Stat. 1080 (1986). 79 14 C.F.R. § 382.21. 80 14 C.F.R. § 382.21 (1–2). 81 14 C.F.R. § 382.21. 82 14 C.F.R. § 382.23(d). 83 49 U.S.C. §§ 40101(d), 40103(b), 44701, and 46105(c). 84 49 U.S.C. § 46105(c). What constitutes an “emergency” is not defined. 69 29 C.F.R. § 1910.1030. 70 29 C.F.R. § 1910.132. 71 29 C.F.R. § 1910.134. 72 Occupational Safety and Health Administration (OSHA), Tuberculosis, OSHA Standards, available at https://www.osha.gov/SLTC/tuberculosis/standards.html (last visited Jun. 23, 2016). 73 Pub. L. No. 103-3, 107 Stat. 6 (1993). 74 29 C.F.R. § 825. 75 Duane Morris, When Disaster Strikes: Pay, Leave and Related Issues, Society for Human Resource Management, (September 1, 2011), https://www.shrm.org/resourcesand tools/hr-topics/compensation/pages/disasters.aspx. 76 Pub. L. No. 103-388, 108 Stat. 4079 (1994).

12 3. Do Not Board List The Do Not Board (DNB) list was made opera- tional in June 2007 and is authorized by the Avia- tion and Transportation Security Act of 2001.85 The list, which includes citizens and foreign nationals, is managed jointly by DHS, the CDC, and TSA. Persons with communicable diseases who meet specific crite- ria and pose a serious threat to the public are prohib- ited from boarding domestic or international commercial aircraft.86 The DNB list helps when local and state efforts at restricting individuals’ move- ments may not be sufficient. Usually, local and state health officials contact the CDC to initiate place- ment on the list. Currently, the DNB list only applies to commercial aircrafts, not buses, trains, or other modes of transportation.87 In addition to the DNB list, additional protections exist for passengers of commercial aircraft. Pilots of foreign and domestic flights are required to report certain illnesses that develop or are encountered during flights to one of the CDC Quarantine Stations at or nearest the plane’s destination.88 G. The Fourth Amendment The Fourth Amendment89 of the U.S. Constitution prohibits unreasonable searches and seizures. Numer- ous powers granted to state officials during a declared emergency or PHE may raise Fourth Amendment concerns. However, it is important to note that many measures, such as security screening in a transporta- tion setting, likely constitute an administrative search;90 such measures implemented for PHEs may likely be considered an administrative search as well.91 Courts have held that consent is not necessary for administrative searches so long as the search is done pursuant to a valid statute.92 Even without a declared state of emergency, states allow health offi- cials to conduct inspections without a warrant when they believe there is a significant or imminent threat to public health.93 H. Interplay of State and Federal Law Given the potential overlap of federal, state, and local authorities in a PHE, understanding roles and responsibilities is critical. Coordination is equally critical. From placing someone on the DNB list to initiating a PHE declaration, officials at all levels and across agencies will need to work together to quickly and effectively respond to an IDO. For exam- ple, when implementing quarantine and isolation measures, federal officials can step in when state efforts to prevent the travel and transportation of a potentially infected person are ineffective; conversely, a state may help when the federal government needs state assistance in enforcing a federal quarantine order.94 There is no clear delineation, however, of when federal intervention might happen or how a joint effort may be executed. This is particularly true in cases in which quarantine and isolation may be considered—a key response in IDOs. Though the CDC has stated that it anticipates using “this federal authority to quarantine an exposed person only in rare situations, such as events at ports of entry or in similar time-sensitive settings,”95 many commenters have noted that “reality tends to be messier than the conceptual realm,” and that “confusion about which level of government should take the lead often occurs.”96 As more infectious diseases come into prominence, effective responses 85 Pub. L. No. 107-71, 115 Stat. 597 (codified at 49 U.S.C. § 114(f) and (h)). 86 Jared Cole, Federal and State Quarantine Isolation Authority, Congressional Research Service, (October 9, 2014). 87 Id. This could change with Proposed Rulemaking introduced in August 2016. See discussion Chapter 5, “Proposed New CDC Rules for Domestic and Quarantine Regulations.” 88 42 C.F.R. §§ 70.4, 71.21(b). 89 U.S. cOnsT. amend. IV. (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). 90 See, e.g., United States v. Aukai, 497 F.3d 955, 959 n.2 (9th Cir. 2007), and Id. at 960 stating “airport screening searches [ . . . ] are constitutionally reasonable adminis- trative searches because they are ‘conducted as part of a general regulatory scheme in furtherance of an administra- tive purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.’” (citing United States v. Davis, 482 F.2d 893, 908 (9th Cir. 1973)). 91 Davis, 482 F.2d at 909, n. 42. 92 Aukai, 497 F.3d at 960. For more on administrative searches, see New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. Ed. 2d 601 (1987); United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. Ed. 2d 87 (1972). 93 See, e.g., N.M. sTaT. ann. § 24-1-19 (2016) (“Whenever it reasonably appears to an inspection officer that there may be a condition, arising under the laws he is authorized to enforce and imminently dangerous to health and safety, the detection or correction of which requires immediate access, without prior notice, to premises for purposes of inspectorial search, and if consent to such search is refused or cannot be promptly obtained, the inspection officer may make an emergency inspectorial search of the premises without an inspection order.”). 94 42 C.F.R. § 70.2. 95 Jared Cole, Federal and State Quarantine Isolation Authority 6, Congressional Research Service, & fn. 46 (October 9, 2014) (citations omitted). 96 Id. at fn. 46 (citations omitted).