Nov. 11, 2014 -- As public concern has heightened over the potential spread of the deadly Ebola virus, the University of Houston Law Center's Health Law & Policy Institute hosted a special preparedness workshop to give area public officials a firmer grounding in the law surrounding various aspects of dealing with pandemic situations.
“It turns out that there are actually a lot of legal and practical issues that arise if a potentially apocalyptic threat comes,” said Professor Seth Chandler, director of the Institute, at the outset of the three-hour session on Nov. 7. The workshop, which was attended by about 70 people, including law enforcement, county, and city government officials, area judges, and public health officials, addressed issues related to law enforcement, quarantine and isolation orders, and employment law.
Harris County Sheriff Adrian Garcia said the possibility of dealing with an infectious agent like Ebola would be a major challenge for his personnel. “However, this is not our first rodeo,” Garcia said, noting previous situations involving the H1N1 virus and the SARS epidemic.
Garcia said the Harris County Jail complex, the largest in the state, routinely houses about 9,000 inmates, with an average of 300 intakes and releases per day. The department is very well-versed in handling medical screenings, he said. But his deputies are most vulnerable in their routine, day-to-day interactions with the public.
“We’re going to jump out of our patrol cars and put our hands on people” if they are ill or incapacitated, he said. “We’re trained to save lives.” It’s in that arena that first responders are needed the most, but also the one where they often have the least ability to protect themselves and others from contamination.
Garcia said there is still some question as to whether the “space suits” worn by first responders actually provide the necessary protection from a virus like Ebola. He noted that his department employs about 5,000 personnel, about 4,000 of whom could potentially need such protective gear.
“I don’t have the money to buy 4,000 suits today,” nor in the immediate future, he said.
Garcia noted that the greater Houston area has a very large population of people from other countries, and that the economy is very dependent on global commerce.
“Our economy depends on the success of people coming and going to other parts of the world,” he said. Public officials have to be cognizant of the fact that stringent measures they take to protect against the spread of disease have the potential of adversely impacting the economy, he said.
Garcia said one of the greatest areas of concern is how the workforce might be impacted if an outbreak of an infectious disease like Ebola were to occur, especially if employees decide not to come to work to protect themselves or their families.
“I think we’re going to have incredible people with their hearts in the right place that will do their very best to show up. But on the other side, if we have staff that we identify as contaminated or affected, there will be a ripple effect. It will have a catastrophic effect, no doubt,” he said.
Likewise, Garcia said if cases of Ebola were to show up in the jail, that would compromise the department’s ability to take in inmates, or even send some to other facilities.
“There will be critical decisions that will possibly have to be made. We may not make arrests in some categories. None of it will be pleasant; none of it will be perfect. There are no simple answers,” he said.
Chandler framed the discussion by comparing the risks involved with a person in the U.S. contracting Ebola with the risks associated with airplane travel.
“We stop airplanes from flying if there’s a 1 in a thousand risk of a crash. And airplane risk is not communicable,” he said. “The problem with a 1 in a 1,000 risk of Ebola-Zaire is if it materializes, you have the potential for lots of people to come down with the disease. And even if we control it critically, so that there’s only a 1 in 100 risk that those other people spread it to others, there is still a substantial risk.”
Thus far, Chandler noted, only a very small number of cases have occurred in the U.S. While the nation’s healthcare system is well-equipped to deal with such events, there are other considerations, he said.
“Are we really prepared to deal with the medical, social, economic and collateral health consequences that will arise when a thousand people have that disease, or ten thousand? Are we even prepared to deal with the fear that might come from just a dozen cases?” he asked.
Allison Winnike, a research professor at UHLC who edited the Institute’s most recent version of “Control Measures and Public Health Emergencies: A Texas Bench Book," a comprehensive manual for judges and other public officials on federal and state law concerning infectious diseases, provided an overview of that law to the attendees.
She began by explaining the differences between quarantine and isolation, which she said are often conflated by the media and in the public mind. Quarantine, she said, applies to individuals who a public health official has reason to believe may have been exposed to an infectious disease like Ebola; isolation applies to individuals who are either already sick or there is a reasonable belief that they have been infected.
Winnike noted that under the U.S. Constitution and federal precedent, the states have authority to use their police powers to protect the public health, including imposing limits on individual liberty. But, citing the seminal 1905 Supreme Court case Jacobson v. Massachusetts, those restraints cannot be “unreasonable or arbitrarily imposed.”
Winnike outlined the ways in which federal authority is somewhat limited in how it can impose control measures on individuals, which is more a function of state governments. This is done through “written control orders” from public health officials which must be served to the individual in person or through registered or certified mail.
“If those subject to written control measures comply voluntarily, the role of the judiciary is minimal,” she said. But as we have seen, voluntary compliance of control measures is not always the case.” She noted the recent incident in Maine in which a nurse who returned from treating Ebola patients in West Africa publicly defied a written isolation order by going on a bike ride.
“The court plays an important role here in ensuring that the individual’s constitutional rights to liberty are balanced against the need to protect the public health.”
Winnike presented charts detailing the federal Centers for Disease Control’s latest guidance on categorizing the risk levels of people who potentially have been exposed to Ebola and guidance for monitoring and restricting them. (http://www.cdc.gov/vhf/ebola/exposure/monitoring-and-movement-of-persons-with-exposure.html). While states, like Texas, are not necessarily bound by the CDC guidelines, they are generally given significant weight because of the agency’s expertise, she said.
The Texas Department of State Health Services also recently issued its own guidance for public health officials which differ in some respects from the CDC guidance. (https://www.dshs.state.tx.us/preparedness/ebola-outbreak.aspx.)
Dr. David Perrse, the public health authority and EMS medical director for the city of Houston, described how the city’s emergency call procedures have changed in response to the Ebola situation. Now, when 911 operators ask callers about medical situations (not involving violence), they ask if the affected individual has a fever, if they have recently traveled overseas, and if so, where. That information is then relayed to first responders, who are most often firefighters.
In such situations, the first responders wear full protective gear, even though they are aware that Ebola is not transmitted through the air. That’s because they are responding to environments that are not completely controlled, unlike a hospital setting, Perrse said. Often the patients and their family members are highly emotional, creating even more complications for the emergency personnel, he said.
Describing the process for deciding whether a person should be placed in quarantine or isolation, Perrse said he understands that the individual may feel that it’s unfair.
“My personal bias is that if we need to put an imposition on somebody before they become symptomatic. They can see certainly that as an injustice, but the consequence is huge. We’re going to have to pay a price, and as a society we’re going to have to decide what price we’re going to pay,” he said.
Perrse said when making such decisions, he would lean more toward protecting the general public and be more willing to restrict a person’s individual right.
“I would rather stand up in front of a court and make that argument, than stand in front of a court and say, you know, I thought that (the Maine nurse) ought to be able to ride her bike wherever she wants, and now we’ve got four or five people that are infected. Which way do I want to defend myself in front of the media and the mayor? But that’s the job, that’s what we’re supposed to do,” he said.
Kevin Troutman, an employment attorney with the Houston firm Fisher & Phillips, discussed some of the myriad ways that employment law can be complicated by a situation like an Ebola case, or even a suspected one.
Troutman emphasized that employers should make sure they have all the facts before making any decision impacting employees, including sending them away from the workplace if they suspect they might have been exposed.
“Kneejerk reactions are bad, in almost every case,” he said.
Troutman said the most salient law is the federal Americans with Disabilities Act. Although the point has not yet been tested in the courts, Troutman said it’s most likely that a person who contracted the Ebola virus would be covered by the ADA.
Troutman said employers should be proactive and have an executive team in place to come up with policies for dealing with the eventuality of an infectious disease like Ebola, and should communicate those policies to their employees.
He said it’s best for employers to rely on the guidance provided by the CDC and state and local health authorities rather than creating risk scenarios on their own.
Also, employers should not make adverse decisions, including firing, against employees who express concerns about traveling overseas or refuse to come to work because of concerns about another employee’s health, Troutman said.
“OSHA says you can’t just fire an employee if they express some reasonable concern about workplace safety, even if it turns out that concern is unfounded. So you have to talk through the issue with that employee,” he said.
Asked by an attendee if an employer can ask an employee to advise in advance of traveling overseas, Troutman said that’s OK, but said it would be better to make that part of a broader policy rather than tie it directly to the present Ebola situation.
Troutman recently co-authored an article for Forbes.com describing workplace issues related to the Ebola situation, which can be found at http://www.forbes.com/sites/danielfisher/2014/10/16/ebola-meet-the-ada-advice-for-employers-on-handling-the-outbreak.