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19 November 2014
The Ebola virus is a severe infectious disease with an average fatality rate of between 50% and 90%. The virus spreads between humans via direct contact with the bodily fluids of infected people (eg, blood and secretions) and surfaces and materials (eg, bedding and clothing) contaminated with these fluids. The average incubation period is between two and 21 days. During this period a person is infectious only when symptoms begin to show.
Notwithstanding the fact that Ebola is not believed to be airborne, it constitutes several threats specific to airlines – including virus transmission during carriage by air and passengers' potential claims.
From October 20 2014 the Belgian Ministry of Public Health and the Brussels Airport Company (the airport manager at Brussels Airport) put into place several measures at Brussels Airport in order to reduce the Ebola infection risk, including:
These procedures will be evaluated and updated frequently. This update analyses the possibilities under Belgian law for airlines to implement health screening through temperature screening or questionnaires to be completed by passengers. The issue relates to aviation safety, privacy protection and public health.
The Belgian Civil Aviation Authority has not yet adopted a public position in respect of the Ebola threat.
Airport managers with legal and contractual powers are entitled to make decisions about what happens at airports. Consequently, airport managers can either allow, allow subject to conditions or refuse passenger screening.
In the event that airlines contemplate organising health screening at Belgian airports, the respective airport managers must be contacted in order to streamline the screening process.
The Privacy Protection Act (December 8 1992) applies to the (non-)automatic processing of personal data and its applicability can be triggered by a questionnaire to be completed by airline passengers.
Pursuant to Article 7 of the Privacy Protection Act, the processing of personal health data is, in principle, prohibited. However, the following exceptions to this rule apply:
Since temperature screenings or questionnaires to determine whether a passenger is infected with Ebola relate to the prevention of a specific risk, processing such data would, in principle, be accepted under the Privacy Protection Act.
However, pursuant to Article 4 of the act, processing the data is subject to several conditions. Among other things, the processing of the data must be adequate, relevant and not excessive in relation to the purpose for which it is processed. Given this condition, the risk exists that screening all passengers arriving at Belgian airports – not only those from Sierra Leone, Guinea and Liberia – may be considered excessive.
Non-compliance with the act may lead to penalties, including:
In order to coordinate a national approach to dealing with the dangers of Ebola, a national Ebola coordinator has been appointed. Belgium's coordinator will ensure an accurate stream of information to professionals and the public.
It seems that airlines considering implementing health screening are being discouraged from doing so by the Ministry for Public Health, as it believes that screening organised by carriers themselves would cause unnecessary panic.
However, if the Ebola threat increases, it is possible that the Ministry for Public Health may alter its initial position.
In any event, to date it seems that the ministry's position is in line with that of the World Health Organisation (WHO), explicitly stating that the risk of Ebola transmission during travel is low and limiting itself to providing general reporting and recommendations such as hand washing.
On November 7 2014 the WHO issued a statement indicating that it is against a general ban on travel or trade as well as restrictions that include the general quarantine of travellers from Ebola-affected countries. However, the WHO recommended exit screenings for all persons travelling from Ebola-affected countries. In relation to screenings on entry into non-affected countries, the WHO did not seem to recommend this practice. It is possible that this position will change in the near future
Implementing health screening in response to the Ebola threat raises questions in relation to aviation safety, privacy protection and public health protection. These questions could render a swift implementation of health screening difficult.
Given that the Ministry of Public Health and the Brussels Airport Company have recently started to implement screening for passengers originating from Sierra Leone, Guinea and Liberia, it is not unthinkable that these measures will be extended if the Ebola threat expands to other countries.
For further information on this topic please contact Pierre Frühling or Elisabeth Decat at Holman Fenwick Willan LLP by telephone (+32 2 643 34 00), fax (+32 2 643 34 88) or email (firstname.lastname@example.org or email@example.com). The Holman Fenwick Willan website can be accessed at www.hfw.com.
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Pierre D Frühling