	Introduction

On June 11, in response to the global spread of a new strain of influenza, the World Health Organization (WHO) raised the level of influenza pandemic alert to phase 6, the highest level, which indicates the start of an actual pandemic. This change in alert level reflected the spread of the new virus, not its severity. Although currently the pandemic is of moderate severity with the majority of patients experiencing mild symptoms and making a rapid and full recovery, the virus and its effects may change over time. This report provides a brief overview of selected legal issues including emergency measures, civil rights, liability issues, and employment issues. There are also a number of authorities in the Public Health Service (PHS) Act that allow the Secretary of HHS to take certain actions in the face of a "public health emergency." There have been no declarations issued under the Stafford Act with respect to the current pandemic. Specifically, the Secretary may take some or all of the following actions:
waive conditions of participation, certification requirements, program participation, and pre-approval requirements under Medicare, Medicaid, or the Children's Health Insurance Program; permit health care providers to provide care under Medicare, Medicaid, or the Children's Health Insurance Program, even if they are not licensed by the state with jurisdiction over the emergency area; waive sanctions under the Emergency Medical Treatment and Active Labor Act (EMTALA) for certain transfers or redirections of patients away from hospital emergency rooms; waive sanctions for violations of the Stark law, which prohibits certain self-referrals by physicians; extend deadlines and other timetables for required activities; waive limitations on payments under Medicare Advantage for care and services provided by out-of-network providers; or waive sanctions and penalties for violations of the HIPAA Privacy Rule such as the use of protected health information for hospital directories, the disclosure of protected health information to patients' families and friends, the distribution of health care providers' and insurers' privacy policies to patients, and individuals' rights to request restrictions, privacy restrictions, or confidential communications. Federal and State Coordination

While the federal government has authority to authorize quarantine and isolation under certain circumstances, it should be noted that the primary authority for quarantine and isolation exists at the state level as an exercise of the state's police power. Federal Actions After Emergence of Influenza A(H1N1)

On July 8, 2009, CDC issued recommendations for state and local planning for a pandemic flu vaccination program. Civil Rights198

		Introduction

Infectious diseases, such as the 2009 influenza pandemic, may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? The United States Constitution and federal civil rights laws provide for individual due process and equal protection rights as well as a right to privacy, but these rights are balanced against the needs of the community. A patchwork of federal and state laws generally operates to protect volunteers, which may include VHPs, and there are also laws that trigger liability protection specifically for VHPs. Employment Issues

		Introduction266

Questions relating to employment are among the most significant issues presented by an influenza pandemic, since, if individuals fear losing their employment or their wages, compliance with public health measures such as isolation or quarantine may suffer. Social distancing can include the use of face masks, teleconferencing, or school closures. It would seem possible for a court to conclude that the isolation or quarantine of individuals during a pandemic serves the public good and that the termination of individuals who are isolated or quarantined violates public policy.
On June 11, in response to the global spread of a new strain of influenza, the World Health Organization (WHO) raised the level of influenza pandemic alert to phase 6, which indicates the start of an actual pandemic. This change reflected the spread of the new influenza A(H1N1) virus, not its severity. Although currently the pandemic is of moderate severity with the majority of patients experiencing mild symptoms and making a rapid and full recovery, this experience could change. This report provides a brief overview of selected legal issues including emergency measures, civil rights, liability issues, and employment issues.
There are a number of emergency measures which may help to contain or ameliorate an infectious disease outbreak. The Public Health Service Act, the Federal Food, Drug, and Cosmetic Act, the National Emergencies Act, and the Stafford Act contain authorities that allow the Secretary of Health and Human Services or the President to take certain actions during emergencies or disasters. While the primary authority for quarantine and isolation in the United States resides at the state level, the federal government has jurisdiction over interstate and border quarantine. The federal government also issues recommendations regarding such activities as school closures and vaccination programs. States and local governments have the authority to initiate emergency measures such as mandatory vaccination orders and certain nonpharmaceutical interventions such as school closures, which may lessen the spread of an infectious disease. The International Health Regulations adopted by the WHO in 2005 provide a framework for international cooperation against infectious disease threats.
The use of these emergency measures to contain the 2009 influenza pandemic may raise a classic civil rights issue: to what extent can an individual's liberty be curtailed to advance the common good? The U.S. Constitution and federal civil rights laws provide for individual due process and equal protection rights as well as a right to privacy, but these rights are balanced against the needs of the community.
Liability issues may become particularly important during the 2009 influenza pandemic. The Public Readiness and Emergency Preparedness Act limits liability with respect to the use of countermeasures for pandemic flu or other public health threats. A patchwork of federal and state laws generally protect volunteers, which may include volunteer health professionals (VHPs), under certain circumstances. Laws also provide liability protections specifically for VHPs.
Questions relating to employment are among the most significant issues presented by an influenza pandemic, since, if individuals fear losing their employment or their wages, compliance with public health measures such as social distancing and isolation or quarantine may suffer. It would seem possible for a court to conclude that the isolation or quarantine of individuals during a pandemic serves the public good and that the termination of individuals who are isolated or quarantined violates public policy. Employees may also have some job protection under the Family and Medical Leave Act.