Enforcement considerations for quarantine and isolation orders

By Lexipol Law Content Staff

It is often said that history repeats itself; such is the case with the current COVID-19 pandemic.

There were initial reports from Spain during the spring of 1918 of a mild new disease infecting the population, however, this was the start of what would become the 1918 Spanish Flu and the deadliest pandemic of modern time. [1] Similarly, COVID-19 was initially a rumor of an infectious disease outbreak in Wuhan, Hubei Province, China, which subsequently became a pandemic changing the way people all over the world live. As in 1918, countering the spread of the virus today begins with community mitigation aimed to reduce social contacts between people in schools, workplaces and other community settings.

During a pandemic, these community mitigations may include quarantine and isolation. According to the Centers for Disease Control and Prevention (CDC), quarantine separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick, while isolation separates sick people with a contagious disease from people who are not sick.

The federal government derives its authority for quarantine and isolation from the Commerce Clause of the United States Constitution. The Public Health Service Act, [2] authorizes the United States Secretary of Health and Human Services, in consultation with the Surgeon General, to take measures to prevent the entry and spread of communicable diseases from foreign countries into the United States or from one state to another within the borders. The CDC is also authorized to detain, medically examine, quarantine, isolate and release individuals suspected of carrying these communicable diseases. [3]

The last time federal authority was utilized for a large-scale nationwide isolation and quarantine was during the 1918 “Spanish Flu” pandemic. At the time of this writing, there is no federal nationwide quarantine order in response to the COVID-19 pandemic.

The primary responsibility for public health rests with states. Through their police powers, states maintain the power to quarantine and isolate individuals within their borders. How this power is invoked and enforced, however, varies from state to state.

For example, under Louisiana law, the state health officer is not authorized to quarantine or isolate any person “unless directed or authorized to do so by the judge of the parish in which the person is located” unless the individual is “infected or suspected of infection with smallpox, cholera, yellow fever, or bubonic plague, or is infected with tuberculosis.” [4]

In Connecticut, any town, city, borough or district director of health may order a person isolated or quarantined if they have reasonable grounds to believe the person is infected with a communicable disease and isolation or quarantine is necessary to prevent a threat to public health. [5] In addition, when the Governor of Connecticut declares a public health emergency, then the Commissioner of Public Health can issue quarantine and isolation orders. [5]

In addition to quarantine and isolation orders, there may be other state-level emergency powers invoked, which may include stay-at-home orders, the designation of containment zones, limitations in travel into or out of certain areas, and orders to close businesses or establish curfews. These emergency powers also vary from state to state. For example, during a declared emergency in their states, some governors can change both statutes and regulations, while others can only change regulations. Additionally, some states do not explicitly authorize the governor to do either.

It is important that you understand the orders you may be asked to enforce or that you are considering enforcing and whether the order is lawful. You should work with legal counsel to identify the scope of your legal authority to enforce any order.

Assuming you have the legal enforcement authority, public perception, ethical and practical issues are all considerations in a fast and rapidly evolving emergency.

Public Perception

There is little doubt that quarantine and isolation are effective in slowing the progression of an infectious disease, but optics can be problematic. For example, some media portrayal of China’s use of quarantine and isolation appears draconian, while some acknowledge its effectiveness. Therein lies the problem for state and local governments ̶ how their actions will be perceived by the public and history, and whether the optics will contribute to the panic or could, conversely, make the enforcement of the quarantine/isolation more effective.

Consider the New Rochelle, New York, containment zone, which was the first declared containment zone in the United States to stop the spread of COVID-19. People were still allowed to move freely, while restrictions existed on gatherings. The New York National Guard took a low-profile approach, exchanging their military vehicles for minivans and operating unarmed in the area. The result was little media fanfare, while the goal of limiting the spread of the virus appeared to have been achieved.

While there is no certain playbook for local government to use for handling such a major large-scale public health crisis, there are several factors that local governments should consider. [6] These factors seek to ensure that individuals in isolation and quarantine are treated humanely and with dignity while balancing the needs of preventing the spread of a contagion and protecting the public.

More importantly, the principles serve to maintain the morale of those with the duty to enforce the isolation and quarantine and the public. This is an important factor in preventing burnout of medical personnel and first responders who risk being vilified for doing their job. Additionally, these principles limit criticism and distortion of the optics by those who may seek to stoke the fires of unrest as this crisis event continues.

Preventing Burnout and Maintaining the Moral Compass

In addition to the impact of isolation and quarantine on the individual, leadership should take into consideration the psychological stress placed on those charged with enforcing these orders.

While it is important to treat individuals in isolation and quarantine humanely and with dignity, it is equally important to treat those enforcing the isolation and quarantine humanely and with dignity to prevent burnout or moral decay. Some factors that impact the mental state of officers include lack of consultation and communication, as well as inadequate support. [7]

Consider the ethical dilemmas facing the following persons: a 38-year-old nurse, a married mother of four, is at work and has heard a rumor that before the end of her shift a quarantine will be ordered, and no one will be allowed to leave the hospital or the area; or a 28-year-old police officer, single, and wanting to make a career of law enforcement, who has been ordered not to allow anyone out of the quarantine area, no matter what.

Lack of information and transparency during a time of crisis leaves individuals to fill in the blanks based on their personal world view and beliefs founded on how they view their place in the mission. Perhaps the nurse’s concern for her family could be lessened by assuring her that she will be allowed to accept personal phone calls from home, although not normally allowed, or that available resources outside the quarantine area will be made available to her family while she is at work. Rules of engagement should be clear. In this example, what, if any, use of force would be appropriate and legally defensible?

Other factors that must be considered by leaders include infection control measures, workers’ compensation issues from exposure, and initiating even simple common workplace accommodations such as lunch and bathroom breaks. Planning and communicating such measures with those assigned to enforce the isolation and quarantine is key.

Clear communication and transparency can accordingly go a long way toward ensuring the success of the mission, maintaining professionalism and reducing moral decay by affirming the individual’s contribution to the protection of their community and loved ones, even during the exercise of such drastic measures as isolation and quarantine or other emergency orders.

questions to discuss with counsel

The authority for quarantine, isolation or other orders can vary from federal to state to a department of health or other; the scope of enforcement can vary depending on the community and the disease, and there are a variety of considerations for both the public safety officials and the public to ensure successful protections that respect individuals’ rights and are empathetic to all of the people involved.

If your agency is on the brink of, or already faced with any of these orders, you should coordinate with your counsel as soon as practicable. Things to consider as you work with your counsel should include the following:

1. What is the authority?

Where is the authority for the order coming from? The federal government, the state, or a local entity? The president has the authority to issue a national quarantine, but to date, has not. Is the authority coming from the Governor? Is the order part of a state emergency where state regulations are being removed? Or is there an executive order from the Governor? Is there an order on the local level (city, county, municipality) to contain a community, police a hospital, or secure a residence?

2. What is the scope of your enforcement power?

• Each state and/or local community may be different. For example, state law may provide that “any order of quarantine…shall be enforced by law-enforcement agencies, [and] …include …the power to detain or arrest any person…in violation of any order of quarantine or isolation.” There may statutory law that detained individuals must be “held in the least restrictive environment that can provide any required health care or other services for such person. [emphasis added].” [8] Similarly, in Connecticut, the Governor has the authority to direct LEOs to immediately take an individual into custody and place him or her into quarantine and that the Governor (not the Health Commission) will notify the law enforcement agencies concerning any necessary infection control procedures required. [9]
• Questions to ask counsel could include, “Do we have the power to detain or arrest?” Or, “if a person violates an order, will be they subjected to a fine, or does law enforcement have the power to detain or arrest?” Assuming the latter, “Are we required to provide the least restrictive environment for required health care services, and is there precedent for that?”
• States and local governments may pass new laws to address a pandemic as the situation evolves. Accordingly, do not hesitate to seek additional clarification with counsel again, as this may be a rapidly evolving, legally fluid situation.
• Ask questions regarding authorization and limitations on the use of force considering the specific order or law that your agency is enforcing.

3. How will you coordinate with health authorities?

• Determine how you or your counsel will handle coordination between your agency and the health department and work out collaborative procedures that are easy to follow and understand.
• How can the line officer be reasonably confident he is empowered and safe to enforce seizures on a health order to enforce a quarantine?
• How can a line officer be reasonably confident in making an arrest for violation of a health order unrelated to a quarantine, e.g., “bars must close” when a bar owner refuses?
• What can be in a handout that we give non-voluntary quarantined subjects to inform them of their rights, etc. so they cannot claim they were left in the dark about due process?
• What should the agency do if the health authorities have not obtained a court order in a timely fashion to enforce a non-voluntary quarantine?
• How will the agency find out what the “necessary infection control procedures” are in this situation?
• Assemble contact information for health authorities in a format that is easily accessible to those in the field and your personnel department. Assume there will need to be constant communication regarding infected public, public safety workers, locations of isolation and availability of medical supplies, and make this communication as streamlined as possible.

4. Assuming you have the enforcement authority, and you understand the scope, consider your approach and discuss it with counsel.

• Do you have discretion in your approach to enforcement? If so, would the New Rochelle low-profile approach be appropriate and effective or is another approach appropriate for your community?

5. Clarify any questions about your personnel policies with counsel and human resources.

• Familiarize yourself with your agency’s relevant policies pertaining to a communicable disease, illness and injury policies, and even critical incident debriefing.
• Agencies should talk to counsel and HR and have a plan and open communication with members and employee associations on what to expect if an employee needs to be quarantined, either voluntarily or involuntarily.
• Communicate with HR regarding what impact this may have on pay. Is the employee on overtime the whole time they are in quarantine or taking sick time?
• Ask counsel what should be communicated and agreed upon with employee groups (e.g., collective bargaining agreements, unions).
• Discuss workplace accommodations and other measures to prevent burnout and low morale.
• Familiarize yourself with policies that may be applicable after the emergency has passed, e.g., worker’s compensation for your employees who may have been exposed in the field or otherwise injured.

6. Strike a balance between clarity, transparency and appropriate communication.

• Clarify with counsel whether and when statements about a person’s medical condition can be made, if ever. For example, if quarantined individuals do not have any condition at all, could hinting that they do lead to liability?

7. Documentation is important.

Document advice received and all informal and formal orders keeping in mind that there is always a chance of litigation.

Conclusion

Isolation, quarantine and other orders such as social distancing will likely reduce the spread of contagious diseases. However, the issuance of the orders and enforcement must comply with applicable federal and state laws, which guarantee the civil rights and liberties of the individual. These guarantees are essential in assuring the public that the authority of the government is being used to protect them and not suppress them so that they embrace and are supportive of these efforts.

Equally important is that by treating these individuals humanely and with dignity, in combination with providing clear communication and transparency to emergency personnel, the psychological and physiological impact on personnel is minimalized, thus reducing mental exhaustion and burnout. This reduction of stress and burnout among emergency personnel is imperative so that we as a nation can endure through this crisis and become more prepared from it.

References

1. Flecknoe, D., Wakefield, B. C., and Simmons, A. (2018). Plagues & Wars: The ‘Spanish Flu’ Pandemic as a Lesson from History, Medicine, Conflict and Survival. 34:2, 61-68, DOI: 10.1080/13623699.2018.1472892.

2. 42 U.S.C. § 264

3. Centers for Disease Control and Prevention. Quarantine and Isolation.; 42 C.F.R. § 70.6 (interstate); 42 C.F.R. § 71.32 (foreign).

4. La. Stat. Ann. § 40:17 (2019)

5. Conn. Gen. Stat. Ann. § 19a-221(2015)

6. Rothstein M. From SARS to Ebola: Legal and ethical considerations for modern quarantine. Indiana Health Law Review (12 Ind. Health L. Rev. 227), 227-280.

7. Maguen S, et al. Routine work environment stress and PTSD symptoms in police officers. Journal of Nervous & Mental Disease, 2009, 197(10), 754-760.

8. Va. Code Ann. § 32.1-48.014.

9. Conn. Gen. Stat. Ann. § 19a-131c.

Bibliography

Sunshine G, et al. An assessment of state laws providing gubernatorial authority to remove legal barriers to emergency response. Health Security, 2019, 17 (2), 156-161.