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The Patient as Victim and VectorEthics and Infectious Disease$

Margaret P. Battin, Leslie P. Francis, Jay A. Jacobson, and Charles B. Smith

Print publication date: 2009

Print ISBN-13: 9780195335842

Published to Oxford Scholarship Online: May 2009

DOI: 10.1093/acprof:oso/9780195335842.001.0001

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Compensation and the Victims of Constraint

Compensation and the Victims of Constraint

Chapter:
(p.359) 18 COMPENSATION AND THE VICTIMS OF CONSTRAINT
Source:
The Patient as Victim and Vector
Author(s):

Margaret P. Battin (Contributor Webpage)

Leslie P. Francis (Contributor Webpage)

Jay A. Jacobson (Contributor Webpage)

Charles B. Smith (Contributor Webpage)

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195335842.003.0018

Abstract and Keywords

When pandemic constraints are imposed, some people will suffer losses, people who might not otherwise have done so. The economic losses of facilities that are used in pandemic emergencies have been addressed by other chapters; this chapter considers losses faced by individuals who are required to stay at home to avoid disease transmission. It argues that the costs they bear result from social choices that are aimed to benefit everyone by reducing the risks of disease transmission. In such cases, reciprocity requires compensation to the extent possible, for losses such as wages, exacerbation of disease conditions, or exposure to the risks of disease from activities such as home care for ill family members who cannot be accommodated in overwhelmed health care facilities.

Keywords:   economic losses, disease transmission, social choices, pandemic, social distancing, quarantine, compensation, reciprocity

During an outbreak of communicable infectious disease like pandemic influenza, as we have just seen, efforts to control transmission almost certainly will mean that some people will be constrained. We turn in this chapter to the issue of compensation when people have been harmed by such constraints, even when the constraints were justified. The imposition of justified constraints does not extinguish obligations to those whose moral claims—for example, to liberty or to health care—are overridden. Constraints typically are designed to reduce vectorhood. Our principle S-5 holds that compensation for loss is required by respect for victimhood, and it is this requirement that we address here. The position we develop is that when people are harmed by constraints that are publicly imposed and that are intended to protect the public, compensation is required as a matter of what we owe each other as enmeshed in a web of infectious disease, when the constraints bear particularly heavily on some individuals and largely benefit others.

Justifying compensation raises many issues, among them why compensation is owed, to whom it is owed, what is owed, and who is obligated to pay the compensation. Here, we start with why people might be owed compensation when they have been harmed because they have been considered possible vectors. We then take up the more difficult issue of why compensation is justified in some cases of pandemic harm, but not in others. Should we, for example, compensate the wealthy air traveler who loses out on a business deal because she is kept off the plane because of her influenza symptoms? What about the day laborer who loses wages because the construction site on which he works is closed by a “snow day”? Should we compensate the family members who are kept at home with a family member who has pandemic influenza and who later become sick themselves, even though it is difficult to tell whether they would have been exposed and become ill anyway? And why should these victims of constraint be compensated, if others who suffer in a pandemic are not: the subsistence farmer whose chickens sicken and die before flocks are (p.360) culled, the workers who go without pay because the construction company has no new contracts, or the people who have not had access to adequate health care earlier in life and are more susceptible to illness as a result?

There may be enormous difficulties in meeting any claims for compensation after a pandemic, as economies collapse and the means to provide what is morally required are simply unavailable.1 Although localized, rapidly controlled episodes of contagious disease—like the 2003 SARS epidemic, for instance—may be small enough in scale so that a society can respond generously without significant strain, compensating for actual financial losses—the costs of quarantine, isolation, lost work time, and other economic losses, limited social resources nonetheless may make even these responses difficult. For example, the government of Uganda was reportedly long delayed in compensating the families of the 16 health-care workers who died in the Ebola epidemic in 2000.2 Where a pandemic is of much larger scale, financial compensation even for actual losses may not be possible. Nonetheless, moral claims to compensation are important to recognize; even if they cannot be fully realized, recognizing them not only expresses respect for those who were harmed but reminds us that we ought to do what we can.3

Compensation

Discussions of compensation for harms sustained from measures for the control of infectious disease have appeared in the literature, but principally addressed as reciprocity to those who are seen as taking on special risks or responsibilities: health-care workers or their family members who are injured by vaccines,4 health-care workers who get sick or die in the line of duty,5 or health-care facilities that bear disproportionate economic burdens in pandemic care.6 Nevertheless, compensation more generally for losses in the wake of constraints or prioritization schemes has not been part of the pandemic planning debate.

The seminal ethical document in the pandemic planning process, the Toronto Joint Centre for Bioethics’ Stand on Guard for Thee, is an example of (p.361) this oversight.7 The Toronto report recommends compensation for health-care workers who incur injury based on the ethical value of reciprocity. With respect to the general public, however, the report states only that governments should have public discussions of what compensation is appropriate for individuals injured by pandemic constraints such as quarantine, as well as what entities might be responsible for any compensation.8 Subsequent plans have not improved on the statements in Stand on Guard for Thee. There is no general discussion of compensation for the constrained in international plans,9 in the U.S. federal plan, or in any of the U.S. state plans available online for review.10 In some plans, psychosocial support is considered in relatively detailed fashion, but as the type of support needed during or in the immediate aftermath of a disaster.11 For example, Virginia's plan has noted the need to address lost wages and business losses during the imposition of social distancing methods such as “snow days.”12 And Mark Rothstein has demonstrated in detail the failure of pandemic planning in the United States—and state or federal law—to address the problem of income support and job security for those required (p.362) to stay home during a pandemic.13 But these aside, under our PVV view, the general failure to address compensation is a serious omission: it forgets attention to victimhood, even as constraints attend to vectorhood.

Models of Compensation

The philosophical, legal, and public health literatures contain a number of models of compensation for those who have been constrained to protect others from infectious disease. The models draw from contract law, tort law, and property law. In these models, compensation is usually but not always understood as financial compensation for tangible losses. As we shall develop later in this chapter, however, it is important to remember that some of the most crucial losses of pandemic victims may not be measurable in monetary terms at all.

One model for compensation—contract law—would compensate people based on agreements: for example, insuring health-care workers for the physical risks they encounter on the job. Contract has the disadvantage that it is limited to the scope of agreements that may or may not be regarded as fully voluntary. As the locus of contract law is individual choice, it may not encourage adequate infectious disease policies, for market failure among other reasons. Tort law would pay people for risks imposed negligently by others, but is limited to cases of fault or otherwise unreasonably dangerous products or activities. Neither contract nor tort sees compensation as a public matter, yet our victim/vector perspective suggests that protecting us from infection benefits us all.

The property model of compensation is eminent domain. It would compensate people for resources taken over or perhaps condemned for the public good, such as a health-care facility dedicated to treatment during a pandemic, or possessions burned to eliminate disease reservoirs. It has the advantage of recognizing that the costs of compensation are to be socially shared. But eminent domain, we will argue, also sees recompense in a limited way.

Costs and Losses That Are Candidates for Compensation

A short list of legally imposed demands that are likely to have identifiable economic costs can be drawn from the pandemic planning discussions.14 From the victim/vector perspective, we contend, the most important factors to consider in whether these costs should be socially shared or whether they should be borne by those who incur them include: their severity, whether they are concentrated (p.363) on particular individuals or widespread, whether or not they are analogous to other safety costs ordinarily borne by the individual, whether they were reasonably to have been expected, and whether they are imposed primarily to benefit others or also to benefit the individual himself or herself. These concerns are familiar in other contexts: they are the kinds of considerations we generally take into account in deciding whether costs should be socially shared. More general issues of justice in health care, both nationally and internationally, remain in the background of what we say as well, but these are questions that will be addressed in Chapter 19.15 Here, we will look at compensable items like costs for tests, treatment, protective equipment, travel restrictions, property losses, quarantine, physical risks, and more.

Tests

Costs of tests may include equipment, drugs and reagents, or labor. When testing for infection is mandated, as in the rapid screening involved in our thought-experiment in Chapter 15, we should consider whether these costs should be borne by individuals being tested or be shared socially. Current practice in the United States is to impose costs of tests, like costs of health care generally, on individuals or their insurance. From the victim/vector perspective, however, we recognize that some testing programs may be implemented for the public good rather than principally for treatment of individuals as patients; there is thus an argument for sharing these costs socially that is independent of background arguments about whether the costs of health care are a social matter. As a practical matter as well, from the perspective of ordinary life, testing programs may be more likely to succeed if their costs are borne publicly, because people who do not otherwise have the resources to pay for health care will at least not face economic barriers to testing.

Immunization and Preventive Treatment

Costs of prevention include antivirals, immunization, and any costs associated with adverse reactions to preventive methods. At present in the United States, costs of antivirals such as Tamiflu are currently borne as treatment costs by individual patients. Costs of immunizations, however, are sometimes borne publicly, on the recognition that it is better overall for most to be immunized than for those who cannot pay to avoid immunization. In the United States, these vaccination (p.364) programs extend even to undocumented immigrants—a sensible (and humane) protective strategy. The federal vaccine compensation program is also available to those who have been injured by required vaccines, as we mentioned in Chapter 14.

Policy decisions to share the costs of immunization reflect practical concerns: that people in poverty will go without immunization and thus pose risks to the rest of us, and that vaccine makers will withdraw from the market if they have to bear the costs of product liability lawsuits when people are injured by vaccination. We think that these policies also are defensible from the victim/vector perspective; from that perspective, we recognize that mechanisms to prevent disease spread both reduce the likelihood that we will be vectors to each other and protect each of us from becoming victims, and so should be supported.

By contrast, the argument to share the costs of antivirals publicly is somewhat less clear. When private individuals use scarce antivirals that they have acquired for themselves, they may protect themselves; but they might also be able to protect themselves in ways that did not consume a scarce good, such as by staying away from areas of likely disease transmission. Allocation of antivirals to health-care workers and providers of other essential services so that they can remain on the job represents a benefit shared by us all in a time of epidemic; the case for socially shared costs from the perspective of “we are all in this together” is much stronger for them.

Protective Equipment

Costs of required protective equipment include everything from the gloves that have become a part of universal precautions against blood-borne illnesses in health care, to equipment donned by people who work with poultry, to the elaborate biohazard suits employed by infectious disease researchers with deadly viruses such as Ebola. Some of this equipment is standard on-the-job safety, no different from the protective goggles worn by metalworkers or the helmets worn on construction sites. Where extraordinary expenses are involved, primarily for the public safety, however, the victim/vector perspective would suggest socially shared costs. As a practical matter, it might also be helpful for costs of protective equipment to be subsidized in impoverished industries where disease transmission is a serious risk and where the costs of protection are high in comparison to economic resources. Poultry raising practices in the developing world are a case in point.

Border Control, Travel Restrictions

Trips may be canceled and other costs may be incurred when borders are closed or travel restrictions or surveillance are in effect. In such cases, people bear costs for their own good, but also for the public good. They have made (p.365) investments—purchased tickets, made plans to attend events—on the legitimate expectation that travel was permitted. At least in this respect, direct costs of canceled travel arguably should be shared socially, along the same lines as the costs of property destruction, considered below. From the victim/vector perspective we would consider that compensation is reasonable. Conversely, people with the resources to travel may be more affluent as a background matter, so the case for compensation is more complex, given competing demands for resources. Some decisions not to travel may be made individually but not under state compulsion, such as decisions to stay home in response to travel advisories. These decisions are surely to be encouraged as a means of reducing disease spread and are highlighted in many international and national pandemic plans. These decisions primarily benefit the stay-at-home traveler and are not the result of direct state coercion. Thus arguably compensation should not be paid for losses associated with such canceled travel. In the interests of encouraging such conduct that benefits everyone, it is important to ensure that people do not suffer penalties such as forfeited airfare or trip deposits when such decisions are made in response to travel advisories. This is the appropriate parallel to people who stay at home during “snow days,” and who should not suffer penalties of lost wages. In contrast, travel plans made after advisories of an epidemic—decisions to travel to the risk—do not carry the aspect of legitimacy based on expectations, except of course for those such as medical personnel who are expected to take the risks.

Closures or Destruction of Property

In order to prevent transmission of infectious disease, it may be important to destroy property that is a disease reservoir. The massive killing of poultry infected with avian flu is only the most recent illustration. British farmers were compensated when their herds were destroyed to prevent the spread of hoof and mouth disease, but the effects on community life overall may have been irremediable.16 The practical need to offer compensation for culled flocks to poultry farmers in Thailand and other countries has been widely recognized, if not fully met.17 From the victim/vector theoretical perspective, such compensation (p.366) also seems justifiable, at least to some extent. People may be bearing substantial costs, even entire livelihoods. These costs may not have been reasonably anticipated—although, if they could have been, the case for compensation is undermined; consider by comparison the situation of farmers whose vegetables are destroyed because of E coli contamination resulting from known unsafe farming practices. And the costs are borne to protect us all.

Businesses may also be shut down, temporarily or permanently, as infection control measures. Examples include the closure of bathhouses in San Francisco during the HIV/AIDS epidemic, the closures of swimming pools during polio epidemics, and the efforts to close stalls selling live poultry as a means to control avian flu. Some of these closures may be unanticipated and quite costly; the case for compensation in these cases is analogous to the case for compensation in the case of property destruction. Questions about the reach of such compensation are difficult. Lost profits may be enormous and difficult to estimate; these problems must weigh in the balance of whether to compensate and are an important reason for the concerns about the inadequacy of compensatory models we explore below.

Seizures or voluntary requisition of property for use in treating or isolating infectious patients also may cause serious economic loss. Hospitals that are the designated centers for treating patients in epidemic situations may be unable to treat other patients.18 Large public facilities may become locations for housing either victims or people who have not yet become infected. The property law model for compensation in such cases of “temporary takings” would be the reasonable rental value of the property.

Isolation and Quarantine

The economic costs of lost wages and quarantine loom large as well: lost wages, educational costs and delays (e.g., college tuition for students barred from attending class), and lost business opportunities. The issues here are like those raised by business losses: the losses are focused on the individual, not easily to be anticipated, and for the benefit of us all. If quarantine is short-lived, the losses may be more limited and compensation an easier fiscal matter. Sick leave policies that are designed to encourage infectious workers to stay home are analogous; workers out on sick leave continue to receive pay, although (p.367) they do consume accumulated sick leave days that might be available on other occasions. Decisions to stay home may benefit the individual as well and may be taken more for individual benefit than for overall protection of others; in cases of an individual staying home when it is unwarranted as a matter of infection control but chosen out of fear of exposure, the case for compensation falters.

Historically, quarantines often herded together the ill, the exposed, and those believed to have been exposed. Such practices increased the risks of illness to those who, albeit exposed, might not have become ill but for the proximity to illness under the quarantine. Although more modern methods emphasize isolation—separation of individuals known to be ill from others they might infect—pandemic influenza plans frequently contemplate home quarantine of the ill or the exposed, a practice likely to subject family members to increased risks even when they are accompanied by the protective measures we defended in Chapter 17. In such circumstances, care-giving family members arguably are analogous to other caregivers or essential service workers and thus are owed compensation for their injuries as a response to what they have done to benefit those afflicted with disease. Even though they are at home with family, they bear increased responsibilities for pandemic care or for reducing disease transmission as a benefit for others.

Physical Risks

Infectious diseases pose risks to caregivers: they might get sick or even die from disease. Those who deliver essential services—food, communication workers, sanitation workers, transportation workers, and the like—may also be exposed to risks they would not encounter but for the need to provide these services. When health-care resources are scarce or overwhelmed by a pandemic, patients may not receive care that they otherwise would have received. People who are asked to stay home may be unable to access basic services or receive basic medical supplies. People herded into quarantines may be placed at greater risk of infection than they otherwise would have been; people caring for patients in isolation may be at far greater risk of disease than they would otherwise have been, had other facilities been available for the care of infected patients.

The pandemic planning literature has paid significant attention to the problem of compensating health-care workers and some other essential service workers. This is as it should be: these workers are bearing focused and potentially very high costs, for the benefit of the rest of us. Even if some health-care workers—infectious disease physicians, for example—might have expected to encounter these risks as a matter of career choice, other health-care workers have not: nurses’ aides or hospital laundry workers, for example. Those who provide essential services—such as food delivery workers—even (p.368) more clearly have not anticipated the special risks of exposure to lethal disease as a part of their job choices; these are the sacrifices of victims that arguably have an especially strong case for compensation. However, these arguments for compensating essential service workers do not preclude arguments for compensating others such as family care givers. We would also note that some losses—one's own death, risks to family members—cannot be made up for in full by economic compensation at all.

From this discussion, we can draw several important points about the inadequacy of compensation models. First, compensation suggests economic recompense; but for some losses, economic recompense may be insufficient or utterly inadequate. Death, injury, loss of an entire family—these harms are not subject to economic replacement. Even when material compensation may be adequate, demands on public economic resources may be too great to provide it, especially in times of pandemic where economic resources will be strained or even collapse. Second, some ways of implementing economic compensation—especially contract or tort law—misframe the issue as between private actors rather than as a public concern. The costs of compensation, we have argued, should be shared socially when constraints benefit all. The recipient of compensation might be an entire community rather than individuals only; an example is the effort in HIV/AIDS research to provide health care to communities some of whose members have participated in studies.

An Outline of the Case for Compensation:

Response to Social Choices

Summarized, the case for compensation is as follows. The constraints set out in pandemic influenza planning are social choices—that is, they are arrived at by “official” decisions, typically of governmental agencies with public discussion and advice. Even when these choices are well justified, they place some people in situations of greater disadvantage than others, albeit with the goal of benefiting everyone. These choices treat people as members of a population faced with the overall burden of disease, not as individuals who may turn out to be victims of disease. They ask people to bear harms, or increased risks of harms, for the overall good. Such social choices, we hold in this chapter, generate at a minimum obligations of some kind of return for the choice that creates disadvantage.19 Some of those who are disadvantaged will suffer (p.369) identifiable harms; a response which views them as individual victims would be to try if possible to compensate them for that harm.

To be sure, it will in some cases be unclear whether the harms people suffer are causally related to the disadvantage: perhaps people who are constrained would have become ill or otherwise been harmed even if they had been in more favored positions. But the case for compensation does not rest on any direct causal chain. It rests on the idea that the social choice to constrain some people, as made in pandemic plans, itself generates obligations to those people—obligations to try to make it up to those people as individuals for the fact that they have been disadvantaged as part of a population's response to threat, when the harm is of a type anticipated in the decision to constrain. Moreover, in some cases it will be hard to know how much to compensate, or to compensate at all—if the result has been the death of an entire family, for example. In what follows, we offer some observations based on our PVV perspective about how pandemic influenza planning might approach these difficult issues about compensation.

Caveats Associated with Partial Compliance Theory

A critical caveat for our argument in this chapter is that pandemic influenza planning must recognize that those harmed by pandemic constraints are likely to be over-represented among those who have already experienced disadvantages in their lives. People who are poor may experience higher risks of exposure to infectious disease because they live in more crowded conditions and have less adequate sanitation. They may be more likely to get sick or to suffer greater levels of mortality and morbidity because they have poorer nutritional status and are more likely to have been exposed to environmental toxins that impair their health status. With jobs that pay hourly wages or that lack benefits such as sick leave or vacation time, poorer people may lose more if they are required to stay at home—and be less able to stay away from possible sources of exposure than others who have resources that enable them to stay at home. If reservoirs of infection are concentrated in impoverished areas, constraints such as quarantine may be imposed on these areas that are not imposed elsewhere. Infection control measures such as destruction of domestic animals also may bear more heavily on those who are already worse off.20

(p.370) Philosophers call theorizing about what justice requires in circumstances of injustice “partial compliance theory.”21 If health care in the United States is a significantly unjust system, in the sense that its benefits and burdens are not fairly apportioned, and health status is to some extent therefore unjustifiably unequal, pandemic planning against this background must be regarded as an exercise in partial compliance theory. Questioning the justice of health care in the United States is beyond the scope of this chapter, but we will discuss it in the next chapter.22 One of our concerns will be whether understanding pandemic planning as a partial compliance problem has implications for the case for compensation. We contend that it does: if partial compliance theory—doing justice under circumstances of injustice—requires paying special attention to the situations of those who are most vulnerable, for example, then the case for compensation for victims is strengthened still further.

Here, we address primarily clear cases of the types of harm anticipated in pandemic influenza planning constraints we have examined: people who are injured by surveillance; who lose daily wages because they are required to stay at home and do not have jobs that come with sick leave or vacation pay; and who become sick while they are subject to constraints such as quarantine. We recognize that many indirect or more subtle harms may also occur, but they are not our focus here. We assume that the constraints and priorities are themselves just, although they may be superimposed on a background of injustice. We assume as well that the individuals are not themselves culpable in a way that might otherwise deflect claims for compensation. They are just ordinary people, constrained in pandemic circumstances because they or others are ill. If compensation of the constrained can be justified at all, these are the kinds of cases in which the justification will be clearest.

Tort Law, Social Choice, and Reciprocity

Historically the picture of compensation in tort law was that the duty to compensate arose when one person was harmed by the fault of another. This picture (p.371) insisted that the compensator be at fault and that the harm be attributable to the fault in the legal sense that the harm would not have occurred “but for” the fault.23 The doctrine of “strict” liability replaced a finding of fault with proof that the product or conduct at issue was unreasonably dangerous but continued to insist on a legally recognized causal relationship between the product's dangerous nature and the harm. “No-fault” schemes such as worker's compensation or some proposals for tort law reform in medical malpractice maintain only the requirement of a causal connection between the source of compensation and the harm.24 Through this connection, they create incentives to reduce the likelihood of harm by better safety practices even though they do not require a finding of fault per se in the generation of the harm. “Market share” liability attributes responsibility for compensation by market share to manufacturers of products such as diethylstilbestrol (DES) or asbestos that caused harm, without requiring the injured person to trace the harm they sustained causally to a particular manufacturer.25 These tort law theories all retain a connection between the source and the resulting harm, however attenuated.

Other compensation schemes have been put into place principally for the incentives they create; as with tort law, these schemes generally require a causal relationship between the source and the injury. For example, the need to ensure vaccine availability was a principal driver of the National Childhood Injury Compensation Act's provision of no-fault compensation for children injured by vaccines.26 The Act requires either demonstration that the injury meets criteria set out in the Vaccine Injury Table27 or that there was a causal connection between the vaccination and the injury;28 and that there is not a (p.372) preponderance of the evidence that the injury was due to some other cause.29 For vaccines received after 1988, compensation is funded by an excise tax of $0.75 on every dose of vaccine administered—thus the costs of compensation are shared among all those receiving vaccine but not among those who choose not to be immunized.30 Recognizing the risks of immunization, as well as resistance to participation, Section 304 of the Homeland Security Act provides for compensation from the federal government for health-care workers injured by participation in the federal smallpox vaccination program.31

Still other compensation structures rest more directly on the idea of reciprocity. When people take on special burdens to benefit society, and suffer harm of a type anticipated from the burden, compensation may be morally required as a response. Programs to compensate soldiers who have been injured in war are an illustration, as are compensation programs for miners suffering from black lung and other diseases. The argument for compensating health-care workers who take risks to care for others and incur burdens is that they have borne a disproportionate burden to protect others and that reciprocity thus requires that society try to make up to them for their losses.32 Some reciprocity-based compensation schemes require the assumption of the disproportionate burden but no subsequent proof of a causal link between the burden and harm; educational and other benefits for returning soldiers were defended on this, among other, grounds.33 Programs to compensate health-care workers for pandemic illness appear not to insist on proof that the illness was contracted in caring for patients rather than from other sources of exposure.

By contrast, some compensation programs represent in theory social responses of compassion to a disproportionate harm itself. Examples include state programs to compensate crime victims, the compensation provided after 9/11, disaster relief, and perhaps even “bail-outs” such as responses to the savings and loan or sub-prime mortgage crises. To a significant extent, these latter efforts (p.373) at relief should be regarded as acts of charity in response to extensive, concentrated, and unanticipated suffering. They may also reflect the idea that social choices—limited investment in policing, inadequate disaster protection programs, or deregulatory decisions—increased the risks of harm and so to some extent there is a shared social responsibility for the harm, albeit one that is indirect. The view of compensation as a matter of what we owe those who have been disadvantaged by social choices that we develop below draws on these familiar strategies.34

The “Constrained” in Pandemic Influenza Planning

Constraints, as we have seen throughout this volume, are a time-honored method for attempting to halt infection's spread. Let us rehearse just briefly some of the constraints we have explored. They include restrictions on movement: travel prohibitions, cordons sanitaires, quarantine, and isolation.35 Many state pandemic plans provide for “snow days”—days on which people are required to stay home from work and schools are closed. Pandemic response plans also specifically include restrictions such as quarantine and isolation and recognize the harms that might ensue.36 Because patients in isolation are known to be infected, they may fail to receive care that otherwise would have been available if there are difficulties in delivering care in the isolated setting. Depending on how they are structured, quarantines may increase risks of exposure and infection to those who have not yet been infected but are included within the quarantine.37

Constraints, as we have seen, also include physical intrusions ranging from minimally invasive diagnostic tests (for instance, a cheek swab, as was the example in our thought-experiment in Chapter 15), to blood tests, to required immunizations, to mandated and directly observed treatment such as (p.374) with MDR-TB. The motivation to compel treatment for MDR-TB and XDR-TB patients especially, as we have explored in Chapter 9, is a response to concerns of burgeoning disease spread.38 Forced prevention, diagnosis or treatment may of course benefit the patient, but it may also have significant and harmful side effects. This can be the case for immediate effects of treatment administered: for example, side effects of anti-tuberculosis drugs can include renal failure and liver toxicity (with a reported incidence rate of 9.2 per 1,000 and a case fatality rate of 4.7%).39 These can also include more generalized health risks, like the development of drug resistance, and social risks, like that of abuse, as was the issue with mandatory testing of pregnant women for HIV, as we have seen in Chapter 12.

Strong utilitarian reasons promote the provision of compensation in return for the imposition of constraints, if it appears that the promise of compensation increases the likelihood of compliance. Increased compliance has been offered as a reason to provide income replacement and job security for people required to stay home from work during a pandemic.40 Negative attitudes toward involuntary quarantine in the United States suggest the need to rely on incentives to achieve even minimally protective compliance rates.41 Employees injured by vaccinations also may be eligible for workers’ compensation or for compensation under the program for federal employees—or so the U.S. overall pandemic plan notes.42

But the argument for compensation is more than the practical need to create incentives for compliance; it is a moral argument as well. Consider first those who are required to follow the “snow day” strategy of staying home from jobs during a pandemic and who thus lose pay because they have no sick leave or vacation benefits or because they work in jobs such as construction where pay is hourly and telecommuting is not an option.43 These people are asked to bear a burden—a (p.375) lost wage, losses in liberty, losses in communication, and interference with personal projects and meaningful activities—in the interests of reducing disease spread. Some of the state pandemic plans remind people of the need to keep sufficient supplies on hand;44 others consider the importance of delivering essential supplies.45 We have examined all U.S. state pandemic influenza plans published or posted on the Web as of this writing; no plan that we could find proposes compensation for lost wages, although some come close. The Arkansas plan notes that the “community trauma” of a pandemic will include lost wages.46 A draft Massachusetts plan provides that all necessary support services should be provided for people in home or other quarantine, including mental health services; and notes the possibility that financial support for medical leave will need to be considered.47

One objection to this argument might be that it proves too much. For example, our view might be thought to justify compensation for those who voluntarily “self-shield,” staying home as a mode of self-protection even if a “snow day” has not been declared, when they have borne the burden of lost wages and benefited the rest of us by not becoming likely vectors of disease transmission. Massachusetts notes in its plan that such self-protective behavior may have a public benefit.48 Nonetheless, this objection holds, it seems problematic to suggest that people are owed compensation for lost wages in such cases: the decision to stay home was voluntary and quite likely personally beneficial.

It does not follow, however, from our argument that compensation would be owed in such cases of self-shielding—or that it would not be. Whether income security should be provided to voluntary self-shielders as a matter of justice (rather than as a matter of encouraging prudent behavior) is a difficult issue, but it is not the problem we are tackling here.49 Our argument in this (p.376) chapter rests on the claim that implementation of the social decisions to constrain that have been developed in pandemic plans as a means to benefit everyone are the basis for a duty to compensate in return. In so constraining some, the state is benefiting others—perhaps everyone—by treating people as vectors. In return, it must respond also to what is morally required in the recognition of vectors as victims. Persons who stay home voluntarily have not been disadvantaged by such a social decision to impose constraints on them, even though they may act in ways that benefit both themselves and others. It is also worth noting that people who are able to self-shield may be those who have the resources to enable them to act self-protectively. Nonetheless, as Massachusetts has noted, there may be other reasons to consider encouraging people to stay at home and supporting them when they do, even if mandatory constraints are not imposed.

Restrictions on movement such as isolation or quarantine view patients or potential patients primarily as possible vectors, deflected from transmission by separation from the rest of the population. Yet the constrained are also victims—people who may suffer or die. Isolation raises the possibility that people will not get care at the level they need, a topic we explore further in the next chapter. Quarantine of the exposed in groups subjects those who have been exposed but not infected to increased probability of exposure from other detainees. Home quarantine may make it more difficult for exposed persons to avoid subjecting family members to risks of exposure; that is why respondents in Hong Kong and other societies with experience of SARS preferred other quarantine locations outside of the home.50 When policies treat the constrained solely as vectors, they ignore this victim-side of their humanity. If the constrained become sick, regard for each of them as a victim requires that we try to make it up to them for what they have lost. This argument does not rely on proof of a causal relationship between the constraint and the harm: patients might have done poorly even without the isolation, or family members might have gotten sick from sources other than the quarantined family member. It relies on the idea that these people have been asked to do something extraordinary—be constrained, at home or elsewhere—because of a social choice to protect everyone, and have suffered the very harm contemplated in the social choice.

Or consider mandated treatment. The argument for compensating health-care workers who take risks in caring for others and incur burdens is that they have borne a disproportionate burden to protect others; reciprocity thus requires that society try to make up to them for their losses.51 There is a parallel (p.377) to other people for whom medical interventions are mandated. Required immunization or therapy may have side effects; people who undergo such interventions for the benefit of all are owed compensation when they are harmed. They have borne burdens associated with policies that were put into place to protect everyone–including themselves.

Another, central objection to this argument is that people who are constrained are also benefited. For example, vaccines serve primarily to protect the individual who is vaccinated and secondarily to contribute to the herd effect, which protects others. The difficulty with this reply is that even when constraints are just and the benefits real, the burdens of them do not fall proportionately. A few people who are vaccinated will have severe side effects, or may shed disease from a live vaccine and thus injure family members or friends. The mandatory nature of childhood vaccination, for example, was an important consideration in the creation of the National Vaccine Injury Compensation Program in the United States. Some people who are exposed in a situation of quarantine will die or become gravely ill—when their risks of infection have risen because of the quarantine imposed to benefit everyone. Even though a constraint is ethically justified, this justification is a separate question from whether people who are harmed by the constraint have moral claims that are not extinguished by the justification of the constraint. Even though a constraint is as limited and as carefully justified as possible, it is impossible to ensure that the resulting effects on people will be justly distributed; additional questions of justice are posed by what to do for those who are harmed under constraints.

Anticipating Costs and Losses

There are of course many difficulties in determining who is owed compensation and what they are owed. Harms may be variable and difficult to prove. Some harm—for example, death of an entire immediate family from infection contracted while under quarantine—may apparently defy compensation. And social resources may be very limited if the economy has been shattered by a pandemic.

Nonetheless, several types of likely harms for the constrained are relatively easy to anticipate, especially wages lost due to constraints, costs of medical care for those who become ill while quarantined at home or while caring for others in the home, and income support for children or spouses of those who die after exposure during quarantine. Pandemic influenza planning should be considering these harms and what compensatory responses might be offered to them. Our discussion here sketches out how existing and readily available models might be extended to cover these cases. We employ such extant models on the (p.378) assumption that it will be simplest to build public policy from existing templates. We also note several important issues in adapting the existing models to the compensation cases we discuss.

Lost Wages

Unemployment compensation is an insurance scheme that provides temporary income support for people who have lost jobs. In the United States, it is funded by a 6.2% employment tax paid on the first $7,000 of wages for covered employees. States administer programs pursuant to federal minimum standards. Benefits are a fractional amount of wages up to a state-specified maximum.52 Eligibility standards include a minimum time of employment, minimum earnings, and availability for work.

Unemployment compensation provides a reasonable model of compensation for employees who are required to temporarily stay at home. It would provide a guaranteed, known wage amount for individuals who otherwise would not have income support during that period. The chief disanalogy between unemployment compensation and the pandemic “snow day” case is that workers are required to be available for work, despite current unemployment. Unemployment compensation also is not a program available to the self-employed. These major gaps have been addressed when special unemployment compensation is available as part of federal disaster relief—but only partially, as the special relief is just a fraction of the ordinary unemployment compensation amount.53 Another gap might be the situation of undocumented workers, who presumably are not eligible for unemployment compensation but who might be over-represented among employees who do not have sources of support when they are required to stay at home. These gaps would also need to be adapted to unemployment compensation in pandemic circumstances. An additional issue that has not been addressed for the case of unemployment compensation in disasters is that state compensation amounts vary widely, with levels generally lower in poorer states with more limited tax bases.

At least in theory, pandemic planners can model the likely number of “snow day” stay-at-home requirement under different pandemic scenarios. Planners can thus also calculate tax amounts that might be necessary to provide a reserve fund that would be available should pandemic constraints be imposed. This additional amount could be garnered by a special surcharge on (p.379) the unemployment compensation tax, or by reliance on general tax revenues, though one disadvantage to relying on a surcharge to the unemployment compensation tax is that the tax is highly regressive and discourages employment of full time, low-cost workers.54 However, in addition to the social-choice argument we have developed, a primary argument for thinking through the funding of something like an unemployment compensation subsidy is that people are more likely to comply with “snow day” requirements if they can be reassured that they will have some kind of replacement income for the period they are required to stay at home. This factor of general benefit suggests considering use of general tax dollars to augment unemployment compensation for those who lose wages due to pandemic constraints, as well as efforts to expand the compensation program to all workers who lose wages because they are subject to constraints.

Costs of Medical Care for Those Who Become Ill Under Quarantine

Compensation for costs of medical care for those who are constrained may be to some extent a moot issue in pandemic circumstances. People who become ill under influenza quarantine would most likely either have recovered or have died by the time compensation becomes a realistic possibility. The most likely candidates for compensation for medical expenses would be those whose pre-existing conditions are worsened by pandemic constraints. One type of example would be someone initially with planned elective surgery that is delayed due to pandemic quarantine. Another would be someone who has ongoing health consequences from influenza contracted during quarantine.

Health financing systems—Medicare, Medicaid, and private insurance—should be prepared to experience increased claims rates during an immediate post-pandemic period. To the best of our knowledge, this has not been modeled in the pandemic planning process. Another—and quite likely—type of person who might incur increased needs for health care as a result of pandemic constraints would be someone who does not have health insurance and who is dependent on public clinics or emergency rooms that have been given over to treating influenza patients. Our emphasis here is what is owed as a matter of return for constraints, not the more general issues of justice about access to health care in the United States. Nonetheless, if these patients have more complex medical needs that are attributable to planned pandemic structures, they too warrant concern in response to their situation as victims disadvantaged by social choices to protect us all. One way to meet that concern would be to open Medicaid enrollment to such patients on a special or expedited basis. (p.380) A special difficulty that must be addressed in the United States is that since the Personal Responsibility and Work Opportunity Act of 1996, many legal but non-citizen immigrants are not eligible for Medicaid.55

Loss of Income Support for Spouses and Children

Workers’ compensation has been suggested as a model for pandemic first responders who are injured by vaccinations or illness contracted on the job. Historically, workers’ compensation was established as a scheme of administrative compensation that replaced the tort system of compensation with certain, but less generous recoveries. It typically pays for health care and replacement percentage of wages up to a pre-set ceiling. Workers’ compensation also may pay a flat rate death benefit, similar to a life insurance payout; amounts may be reduced for nonresident alien beneficiaries in some states.56 Workers’ compensation is funded through employer insurance premiums that are experience-rated; the goal of such experience rating is to create incentives to improve workplace safety.

Even for pandemic responders who are injured on the job, workers’ compensation is a problematic compensation model. Pandemic risks are largely not under the employer's control, although some such risks might be reduced by appropriate training, equipment, and risk assessment. General tax revenues rather than experience-rated employer premiums might therefore be a more appropriate funding source.

For the constrained who lose income support, the analogy with workers’ compensation is even more inapposite. Perhaps the argument might be that they are in a sense doing a “job”—accepting the constraints or prioritizations, for the general good. But there is no employer to look to as a source of premiums; general tax revenues would seem the likely source. Nevertheless, workers’ compensation payment schedules are a useful analogy for compensation amounts. They are settled, modest, and capped. They might thus avoid some of the enormous difficulties of equity that attended the 9/11 compensation process.57 (p.381) Another possible analogy is the bottom-weighted Social Security system, but this has the difficulty that people who die under pandemic constraints may well be over-represented among those who have accumulated limited amounts of Social Security eligibility.

Social Choice and Compensation:

A Limited Conclusion

If an influenza pandemic occurs, some people are likely to be constrained. Indeed, this may be the majority of individuals in a population where the threat of epidemic spread is great. To date, pandemic planning has largely considered justifications for compensating health-care workers who shoulder the burdens and risks of care as a matter of reciprocity. It has not as yet attended very thoroughly to possible justifications for compensating the constrained. In this chapter, we have developed social-choice as an initial argument for extending compensation to those constrained under the social choices implemented under pandemic plans, beyond the narrow range of compensation considered in the basic plans. We have also considered what some possible models for compensation might be. The argument from respect for people as victims and vectors is, we think, clearest for the constrained whose losses are the result of identifiable social choices.

Nonetheless, there may be analogous arguments to be made for those who have been disadvantaged by the social choices made in health policy, especially for those who fail to receive health care because of circumstances of injustice. Then, too, what about those who are “deprioritized” to receive vaccination, antivirals, or intensive care in pandemic plans? In the next chapter, we turn to pandemic prioritization and issues of justice raised by our PVV view.

Notes:

(1.) Martin I. Meltzer, Nancy J. Cox, and Keiji Fukuda, “The Economic Impact of Pandemic Influenza in the United States: Priorities for Intervention,” Emerging Infectious Diseases 5, no. 5 (September–October 1999): 659–671.

(2.) Charles Wendo, “Caring for the Survivors of Uganda's Ebola Epidemic One Year On,” Lancet 358 (2001): 1350.

(3.) Note how important even apologies remain to the U.S. soldiers exchanged as prisoners of war with the Japanese or the indigenes who fought for France in World War II.

(4.) AAEM/SAEM Smallpox Vaccination Working Group, “Smallpox Vaccination for Emergency Physicians,” Academic Emergency Medicine 10, no. 6 (June 2003): 681–683.

(5.) Lynette Reid, “Diminishing Returns? Risk and the Duty to Care in the SARS Epidemic,” Bioethics 19, no. 4 (2005): 348–361.

(6.) Vickie J. Williams, “Fluconomics: Preserving Our Hospital Infrastructure During and After a Pandemic,” Yale Journal of Health Policy, Law & Ethics 7 (2007): 99–152.

(7.) So is the most recently released ethics discussion of which we are aware. See James C. Thomas, Ethical Concerns in Pandemic Influenza Preparation and Responses, white paper commissioned by the Southeast Regional Center of Excellence for Emerging Infections and Biodefense, Policy, Ethics and Law Core (SERCEB), http://www.serceb.org/wysiwyg/downloads/pandemic_flu_white_paper.May_25.FORMATTED.pdf (accessed September 2007). Both the Toronto and the SERCEB white paper discussions cite reciprocity as a value. But it is discussed principally in the context of responses to Workers who bear special burdens of care during an influenza pandemic, not as a matter of reciprocity to the constrained and deprioritized we discuss here.

(8.) University of Toronto Joint Centre for Bioethics Pandemic Influenza Working Group, Stand on Guard for Thee: Ethical Considerations in Preparedness Planning forPandemic Influenza (Toronto: University of Toronto Joint Centre for Bioethics, 2005), http://www.utoronto.ca/jcb/home/documents/pandemic.pdf (accessed January 27, 2008), 15. See also Jaro Kotalik, “Preparing for an Influenza Pandemic: Ethical Issues,” Bioethics 19, no. 4 (August 2005): 422–431.

(9.) See Lori Uscher-Pines et al., “Priority Setting for Pandemic Influenza: An Analysis of National Preparedness Plans,” PLoS Medicine 3, no. 10 (2006): e436.

(10.) The federal plan is U.S. Department of Health and Human Services, HHS Pandemic Influenza Plan (November 2005), http://www.hhs.gov/pandemicflu/plan/pdf/HHSPandemicInfluenzaPlan.pdf (accessed February 6, 2008). State plans are also available. See U.S. Department of Health and Human Services, “PandemicFlu.gov: State Pandemic Plans,” http://www.pandemicflu.gov/plan/states/stateplans.html (accessed February 7, 2008). This is not to say that discussions have entirely ignored compensation. For example, the Model Health Emergency Health Powers Act provides for compensation when facilities are taken over for use in a pandemic, but not when they are destroyed as a disease risk. Center for Law and the Public's Health at Georgetown and John Hopkins Universities, “The Model State Emergency Health Powers Act” (December 21, 2001), http://www.publichealthlaw.net/MSEHPA/MSEHPA2.pdf (accessed January 24, 2008), sec. 506. Our contention in the subsequent chapter will be that these and other recommendations are inadequate from the point of view of justice.

(11.) E.g., Kentucky Cabinet for Health and Family Services, Kentucky Pandemic Influenza Preparedness Plan (April 2007), http://chfs.ky.gov/NR/rdonlyres/6CD366D2-6726-4AD0-85BB-E83CF769560E/0/KyPandemicInfluenzaPreparednessPlan.pdf (accessed July, 2008), supp. IX.

(12.) Virginia Department of Health, Emergency Operations Plan Attachment Pandemic Influenza (March 2006), http://www.vdh.virginia.gov/PandemicFlu/pdf/DRAFT_Virginia_Pandemic_Influenza_Plan.pdf (accessed July, 2008), supp. 8, 7.

(13.) Mark Rothstein and Meghan Talbott, “Encouraging Compliance with Quarantine: A Proposal to Provide Job Security and Income Replacement,” American Journal of Public Health 97 (April 2007): S49–S56.

(14.) This list is drawn from the Haddon matrix. See Daniel J. Barnett et al., “A Systematic Analytic Approach to Pandemic Influenza Preparedness Planning,” PLoS Medicine 12, no. 2 (December 2005): e359.

(15.) See, e.g., Madison Powers and Ruth Faden, Social Justice: The Moral Foundations of Public Health and Health Policy (New York: Oxford University Press, 2006); Norman Daniels and James Sabin, Setting Limits Fairly: Can We Learn to Share Medical Resources? (New York: Oxford University Press, 2002); Nancy Kass, “Public Health Ethics: From Foundations and FrameWorks to Justice and Global Public Health,” Journal of Law, Medicine, and Ethics 32, no. 2 (2004): 232–242.

(16.) See, e.g., Paul Harris, “The Plague upon Our Village,” Observer, news, January 20, 2002, 13.

(17.) See, e.g., Peter Alford, “Bird Flu Financial Help for Jakarta,” Australian, local, June 26, 2006, 2; Keith Bradsher, “The Front Lines in the Battle Against Avian Flu are Running Short of Money,” New York Times, sec. 1, October 9, 2005; Mary Ann Benitez, “One Fifth of Live Poultry Stalls Agree to Close in Flu Buy-Back,” South China Morning Post, August 26, 2004, 1; John Aglionby, “Farmers Count Flu's Bitter Cost,” The Observer, news, January 25, 2004, 26, reporting promise of the Thai government to pay farmers for culled stock; Alan Sipress, “Bird Flu Upends Industry, Livelihoods in Thailand,” Washington Post, sec. A1, January 25, 2004, reporting that promises of compensation to Thai farmers remain indefinite and Chaanda Chakraborti, “Pandemic Management and Developing World Bioethics: Bird Flu in West Bengal,” Developing World Bioethics, forthcoming, describing “botched” culling practices and poor crisis management skills in the January 2008 H5N1 outbreak in West Bengal, India, as “particularly glaring” in the case of fixing the compensation rate paid for the birds to be culled.

(18.) For a thorough discussion of the complex issues involved in compensating hospitals providing care during epidemics, see Williams, “Fluconomics.”

(19.) There is one seminal discussion of such general obligations of return in the infectious disease context, arguing that if we expect people to comply with a duty not to infect others, society must reciprocate with commitments to treatment, nondiscrimination, and in some cases compensation. See John Harris and Soren Holm, “Is There a Moral Obligation Not to Infect Others?” British Medical Journal 311, no. 7014 (November 4, 1995): 1215–1217.

(20.) For a discussion of the burdens imposed on impoverished people by the destruction of domestic animals, particularly poultry, see Ruth R. Faden, Patrick S. Duggan, and Ruth Karron, “Who Pays to Stop a Pandemic,” New York Times, sec. A, February 9, 2007.

(21.) The term is originally John Rawls's. John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971). Rawls classifies both naturally caused straitened circumstances such as drought and human injustice together as partial compliance contexts, without separating the two. Arguably, therefore, any pandemic situation is a partial compliance situation in which ideal justice cannot obtain. Rawls leaves unexplored whether natural and social partial compliance contexts require different treatment; our remarks here refer to the background injustice of social circumstances and we leave open whether they are also relevant to natural disasters.

(22.) We fully recognize that a different kind of response to the issues we raise here would be to urge the United States to make greater strides toward health justice, for example in the form of universal health care. In this chapter, our goal is to make the positive case for compensation; we think this is an important issue in its own right, regardless of one's position about health justice more generally.

(23.) Legal cause is not the same as scientific cause and is a notoriously difficult notion. For an argument that legal cause is a normative concept, see H.L.A. Hart and A.M. Honore, Causation in the Law (Oxford: Clarendon, 1962).

(24.) See, e.g., David M. Studdert and Troyen A. Brennan, “Toward A Workable Model of ‘No-Fault’ Compensation for Medical Injury in the United States,” American Journal of Law & Medicine 27 (2001): 225–252; William M. Sage, Kathleen E. Hastings, and Robert A. Berenson, “Enterprise Liability for Medical Malpractice and Health Care Quality Improvement,” American Journal of Law & Medicine 20(1994): 1–28.

(25.) See, e.g., Kenneth R. Lepage, “Lead-Based Paint Litigation and the Problem of Causation: Toward a Unified Theory of Market Share Liability,” Boston College Law Review 37 (1995): 155–182.

(26.) 42 U.S.C. § 300aa-10 (2007); see Richard J. Webby and Robert G. Webster, “Are We Ready for Pandemic Influenza?” Science 302, no. 5650 (2003): 1519–1522.

(27.) 42 U.S.C. § 300aa-14(c) (2007); 42 C.F.R § 100.3 (2007). The injury table is established by rule and represents side effects and time frames that are generally accepted to reflect a causal relationship between the vaccine and the injury. For a critical discussion of the functioning of the table in this regard, see Lainie Rutkow, Brad Maggy, Joanna Zablotsky, and Thomas R. Oliver, “Balancing Consumer and Industry Interests in Public Health: The National Vaccine Injury Compensation Program and Its Influence During the Last Two Decades,” Penn State Law Review 111(2007): 681–735.

(28.) 42 U.S.C. § 300aa-11(c) (2007).

(29.) 42 U.S.C. § 300aa-13(1)(B) (2007).

(30.) Centers for Disease Control and Prevention, “CDC Vaccine Price List,” http://www.cdc.gov/vaccines/programs/vfc/cdc-vac-price-list.htm (accessed February 9, 2008). Funding compensation by increasing the costs for those who bear the burden of vaccination—rather than sharing the costs with those who free ride—seems perverse.

(31.) Centers for Disease Control and Prevention “Guidance for the Healthcare Community Concerning Section 304 of the Homeland Security Act,” http://www.bt.cdc.gov/agent/smallpox/vaccination/healthcare-304-guidance.asp (accessed February 9, 2008); for a discussion of the program, see Rutkow, “Balancing Consumer and Industry Interests,” 725–729.

(32.) University of Toronto Joint Centre for Bioethics Pandemic Influenza Working Group, Stand on Guard for Thee, 11.

(33.) See, e.g., Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge: Harvard University Press, 1992); Florence Wagman Roisman, “National Ingratitude: The Egregious Deficiencies of the United States' Housing Programs for Veterans and the ‘Public Scandal’ of Veterans' Homelessness,” Indiana Law Review 38 (2005): 103–176.

(34.) See, e.g., Naomi Seilor, Holly Taylor, and Ruth Faden, “Legal and Ethical Considerations in Government Compensation Plans: A Case Study of Smallpox Immunization,” Indiana Health Law Review 1 (2004): 1–27. This is the best ethical discussion we have found of the obligation to compensate those who have been harmed by a public health intervention. It relies on a tort law analogy, seeing compensation as owed when harm is caused by governmental action aimed to avert a greater harm. Our suggestion relies on obligations of reciprocity generated by the governmental decision rather than a direct causal link between the government action and the harm.

(35.) For a good discussion of the history of quarantine and isolation and of the role of due process guarantees, see Michelle A. Daubert, “Comment: Pandemic Fears and Contemporary Quarantine: Protecting Liberty Through a Continuum of Due Process Rights,” Buffalo Law Review 54 (2007): 1299–1353.

(36.) E. Vinson, “Managing Bioterrorism Mass Casualties in an Emergency Department: Lessons Learned from a Rural Community Hospital Disaster Drill,” Disaster Management Response 5, no. 1 (2007): 18–21.

(37.) Daniel Markovits, “Quarantines and Distributive Justice,” Journal of Law, Medicine & Ethics 33 (2005): 323–338.

(38.) Jacqui Wise, “Southern Africa Is Moving Swiftly to Combat the Threat of XDR-TB,” Bulletin of the World Health Organization 84, no. 12 (December 2006), http://www.who.int/bulletin/volumes/84/12/news.pdf (accessed February 9, 2008), 924–925.

(39.) E.J. Forget and D. Menzies, “Adverse Reactions to First-Line Antituberculosis Drugs,” Expert Opinion on Drug Safety 5, no. 2 (March 2006): 231–249.

(40.) University of Toronto Joint Centre for Bioethics Pandemic Influenza Working Group, Stand on Guard for Thee, 13; Rothstein and Talbott, “Encouraging Compliance.”

(41.) Robert J. Blendon et al., “Attitudes Toward the Use of Quarantine in a Public Health Emergency in Four Countries,” Health Affairs 25, no. 2 (March-April 2006): w15–w25.

(42.) U.S. Department of Health and Human Services, HHS Pandemic Influenza Plan, E-32. The HHS plan does not note any other available sources of compensation, for example for any injured non-Workers.

(43.) Some pandemic plans explicitly contemplate “snow days,” a bucolic euphemism suggesting happy families playing together, rather than the considerable costs of lost wages and others hardships. See, e.g., State of Illinois, Illinois Pandemic Influenza Preparedness and Response Plan, version 2.05 (October 10, 2006), http://www.idph.state.il.us/pandemic_flu/Illinois%20Pandemic%20Flu%20Plan%20101006%20Final.pdf (accessed July 1, 2008), 63; Minnesota Department of Health, Pandemic Influenza Plan, Draft, version 2.5 (April 2006), http://www.health.state.mn.us/divs/idepc/diseases/flu/pandemic/plan/mdhpanfluplan.pdf (accessed July 5, 2008), 72. See also the Arkansas plan, developed post-Katrina, recognizes the community trauma of lost wages but does not include a discussion of compensation, Arkansas Department of Health and Human Services, Arkansas Influenza Pandemic Response Plan (August 2006), http://www.healthyarkansas.com/pandemic_influenza/pandemic_influenza_plan.pdf (accessed February 9, 2008; link no longer valid), app. 9.

(44.) E.g., Indiana State Department of Health, Pandemic Influenza Plan (October 2006), http://www.in.gov/isdh/files/PandemicInfluenzaPlan.file (accessed July 5, 2008), 37.

(45.) Arkansas Department of Health and Human Services, Arkansas Pandemic Response Plan, 91, app. 2.

(49.) Rothstein and Talbott, “Encouraging Compliance.”

(50.) Robert J. Blendon et al., “Attitudes Toward the Use of Quarantine.”

(51.) University of Toronto Joint Centre for Bioethics Pandemic Influenza Working Group, Stand on Guard for Thee, 11.

(52.) Almanac of Policy Issues, “Unemployment Compensation,” Almanac of Policy Issues, http://www.policyalmanac.org/social_welfare/archive/unemployment_compensation.shtml (accessed February 9, 2008).

(53.) See, e.g., Pamela Winston et al., “Federalism After Hurricane Katrina: How Can Social Programs Respond to a Major Disaster?” Tulane Law Review 81 (2007): 1219–1261 (1233–1235).

(54.) Lawrence H. Summers, “Some Simple Economics of Mandated Benefits,” American Economic Review 79, no. 2 (1989): 177–183.

(55.) 42 U.S.C § 1396a (2007); Howard F. Chang, “Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy,” New York University Annual Survey of American Law 58 (2002): 357–370.

(56.) Adam S. Hersh, “Go Home, Stranger: An Analysis of Unequal Workers' Compensation Death Benefits to Nonresident Alien Beneficiaries,” Florida State University Law Review 22 (1994): 217–241.

(57.) Lloyd Dixon and Rachel Kaganoff Stern, Compensation for Losses from the 9/11 Attacks (Santa Monica, Calif.: Rand Corporation, 2004), http://www.rand.org/pubs/monographs/2004/RAND_MG264.pdf (accessed February 9, 2008). The principal amounts of 9/11 compensation went to businesses and first responders; questions were also raised about compensation amounts for higher income earners.