By Sabrina Adler, Manel Kappagoda, Rebecca Johnson & Patrick Glass
The Centers for Disease Control and Prevention (CDC) and ChangeLab Solutions have developed a related training on Public Health Threats & the US Constitution: What Responders Need to Know About Equity, Law, and Public Health Authority. Beyond what is covered in this blog post, the training includes more detailed information about isolation and quarantine. To test your knowledge of the US Constitution and emergency response, take our quiz.
COVID-19 is an extremely serious threat to public health and safety in the United States. Responding adequately and quickly to this pandemic can help save the lives of millions of Americans.
To date, states, territories, tribes, and localities have mostly relied on voluntary or mandatory social distancing (sometimes called physical distancing[1]) to prevent the spread of COVID-19. Social distancing is a common public health measure for disease control, especially during outbreaks of communicable disease. As COVID-19 has spread across the country, widespread social distancing has been recommended or ordered by public health authorities at all levels of government: federal, state, tribal, territorial, and local.
Now that states and localities are starting to relax their stay-at-home orders[2] and new cases of COVID-19 are likely to emerge, public health officials will need to increase their use of isolation and quarantine, either voluntary or mandatory, to avoid the spread of infectious disease.
This blog post is intended for public health leaders at local, state, and federal levels who need a clear understanding of the legal requirements related to isolation and quarantine, including the constitutional rights of individuals whose liberties are restricted by public health measures. The information provided might also be useful to public health lawyers, public health nurses, public health educators, public health advocates, and public health faculty and students.
What is the difference between isolation and quarantine?
The key to any public health action is balancing public good and individual freedom. This consideration applies to all public health actions, including the decree and enforcement of social distancing strategies, isolation, and quarantine. According to the CDC, isolation separates sick people with a contagious disease from people who are not sick, while quarantine separates and restricts the movement of people who have been exposed to a contagious disease in order to see whether they become sick.
The objective of these measures is to reduce the transmission of disease throughout a population. Even when broader stay-at-home orders are lifted, the use of isolation and quarantine strategies will be important to ensure that those who are ill with or who have been exposed to COVID-19 do not continue to spread the virus. All mandatory isolation and quarantine actions raise a variety of legal issues, from who has the authority to order isolation and quarantine to how such orders must be carried out.
Who can order isolation or quarantine?
States, territories, and tribes have broad authority to act in the interest of the health, safety, and welfare of the public. In particular, to control the spread of disease within their borders, states have laws that authorize the use of isolation and quarantine. These laws vary from state to state and can be specific or broad. In some states, local health authorities implement state law. In most states, breaking a quarantine order is a criminal misdemeanor.
Tribes have the authority to take actions that promote the health, safety, and welfare of their own tribal members. Tribal health authorities may enforce their own isolation and quarantine laws within tribal lands, if such laws exist.
Government officials have many roles when it comes to issuing isolation and quarantine orders, and the delegation of authority can depend on individual state laws. Generally, during public health emergencies, epidemiologists and scientists make recommendations about isolation and quarantine. Next, state or local health officials issue an order based on those recommendations. Some states give the power to order isolation and quarantine to local governments, while other states reserve that power for themselves. This division of responsibilities and powers makes it very important for government officials and groups to communicate clearly and cooperate closely at state and local levels during a public health emergency.
The federal government also plays a role when it comes to isolation and quarantine. Under the Public Health Service Act, the Centers for Disease Control and Prevention can detain, medically examine, or conditionally release people suspected of carrying certain communicable diseases at any international border, including at international airports or at borders between states. This screening power is widely used, and such screenings routinely happen at US airports.
Additionally, the federal government has screening authority within a state or territory if an individual is reasonably believed to be infected and state, territorial, or local disease control measures are inadequate to control the spread of disease. It’s important to note that the federal authority to screen, isolate, and quarantine applies only to communicable diseases that have been listed in a Presidential Executive Order. Federal isolation and quarantine are authorized for these communicable diseases: cholera; diphtheria; infectious tuberculosis; plague; smallpox; yellow fever; viral hemorrhagic fever; and severe acute respiratory syndromes, including COVID-19 and flu, that can cause a pandemic.
What are the legal requirements for these measures?
The government has the legal authority to require quarantine, isolation, and treatment, but it must guarantee that those affected by these actions will receive due process and that isolation and quarantine do not violate any other constitutional provisions, such as equal protection. The term due process means that laws need to be applied fairly and that the government cannot deprive a person of “life, liberty, or property” without a just process. The equal protection clause in the US Constitution requires that states and localities treat their citizens equally. Some state health laws do not provide detailed guidance and requirements related to isolation and quarantine procedures, while others do. In addition, some states have bench books that provide an overview of public health law for use by the judiciary, public health officials, state and local public health attorneys, and the public; these bench books include guidance on implementing isolation and quarantine procedures.
Most protections for individuals under isolation or quarantine derive from constitutional due process requirements triggered when depriving a person of their liberty. To ensure due process, the following elements must be in place:
1 . There must be a rational, or reasonable, basis for detention.
The government must demonstrate that it is has reason to believe that the person is infected (for isolation) or was exposed to a disease (for quarantine).
2. Isolation or quarantine must be the least restrictive means necessary to prevent further spreading.
The government must show that isolation or quarantine is necessary, based on the science of how the disease spreads. During an infectious disease outbreak, public health officials weigh the threat posed by the disease and then enact a response tailored to the situation. In order to respect individual rights, the goal is always to use the least restrictive means necessary to confront the emergency. While the restrictions many communities are facing right now may seem extremely onerous, they are appropriate, given the grave threat that COVID-19 poses to public health.
3. Those affected by isolation and quarantine measures have a right to notice and a right to counsel.
If ordered into isolation or quarantine by a health officer, an individual should receive an isolation or quarantine administrative order that provides notice and an explanation of due process procedures. The right to counsel means that you can have an attorney represent you if you decide to contest the government’s decision to place you in isolation or quarantine. In the case of a contagious disease outbreak, courts have provisions that allow individuals to participate in legal proceedings without having to appear in person. The same provisions apply to attorneys representing clients under these circumstances.
4. Quarantined or isolated individuals have a right to a hearing, upon request.
A hearing provides an opportunity to challenge the factual basis for an isolation or quarantine order. However, state laws generally allow an ordering official to detain a person before the hearing if delays would jeopardize public health. Officials must also schedule an emergency hearing within a reasonably short time — for example, within 48 hours after the detention begins. After exhausting all other appeals, individuals have a constitutional right to challenge their detention by appealing to a federal court. This type of appeal is known as a habeas corpus petition.
What does the government have to provide to isolated or quarantined individuals?
Individuals may be isolated or quarantined in their home, if possible, or in some other location such as a hotel, a medical facility, or a military base. Regardless of the location, constitutional principles, along with various state statutes, spell out a list of basic needs that should be met for those affected by isolation or quarantine orders:
- Food, medical care, safety, and sanitary needs
- Separation of isolated from quarantined persons
- Medical treatment during confinement
- Habitable accommodations
- Protection from known threats
It is also important for the government to ensure that things like religious and dietary considerations are accommodated to the extent reasonable and possible.
How will these measures affect health equity?
Health equity means that everyone, regardless of who they are or where they live, has a fair and just opportunity to live a healthy life. Achieving health equity entails eliminating the drivers of health inequities — like structural discrimination, income inequality and poverty, disparities in opportunity, and governance that limits meaningful participation. Public health policies can advance or inhibit health equity, often through unintended consequences.
Many of the community members who find themselves subject to isolation and quarantine orders are the same ones who live with chronic illnesses that put them at greatest risk for COVID-19 and other infectious diseases. They may be living paycheck to paycheck, and an isolation or quarantine order might mean that they will be laid off. People living at or below the poverty line, especially unhoused individuals, will need support from the government to ensure that their basic needs are met during a period of isolation or quarantine. Public health professionals and policymakers who are implementing isolation and quarantine orders, provided they meet the requirements of due process laid out earlier, are doing the right thing for the public’s health. As they implement their isolation and quarantine plans, they also need to put safeguards in place to ensure that while they are addressing the very real threat of COVID-19 they are not exacerbating long-standing health disparities.
[1] We recognize that terminology is evolving toward physical distancing instead of social distancing as we collectively realize that although we are physically apart, we are all facing this pandemic together. Additionally, we recognize the effects of social isolation on stress, mental health, and well-being. We’ve used the term social distancing in this post so as not to confuse people who are following the news and may not be familiar with the term physical distancing.
[2] We do not make a recommendation in this blog post about the timing of relaxing shelter-in-place measures. Those decisions need to be made by health officials based on official reopening guidance and the unique nature of the pandemic in their communities.
This blog post is a publication of the Public Health Law Academy, which delivers online trainings on the use of law and policy to improve population health outcomes. The Public Health Law Academy is supported by ChangeLab Solutions and CDC.
Please see our training Public Health Threats & the US Constitution: What Responders Need to Know About Equity, Law, and Public Health Authority for more detailed information about social distancing, isolation, and quarantine. The training is co-hosted by CDC and ChangeLab Solutions.
5/6/2020