Sponsored by
The COVID-19 pandemic has created unprecedented challenges for law enforcement agencies, from questions around enforcing stay-at-home orders to how to protect officers from exposure. View this on-demand webinar for expert advice on some of the complex legal and operational issues arising out of the coronavirus crisis. Lexipol co-founders Bruce Praet and Gordon Graham talk with attorney Laura Scarry and Chief Ken Wallentine about factors to consider around scope of authority/responsibility for enforcing shelter-at-home or quarantine orders; how and why officers should be documenting potential exposures; and training and policy changes agencies should consider in light of the coronavirus. Click here to access .
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.
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.
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.
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?
3. How will you coordinate with health authorities?
4. Assuming you have the enforcement authority, and you understand the scope, consider your approach and discuss it with counsel.
5. Clarify any questions about your personnel policies with counsel and human resources.
6. Strike a balance between clarity, transparency and appropriate communication.
7. Documentation is important.
Document advice received and all informal and formal orders keeping in mind that there is always a chance of litigation.
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.
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.
Lexipol’s Content Development staff consists of current and former public safety professionals including lawyers and others who have served as chief, deputy chief, captain, lieutenant, sergeant, officer, deputy, jail manager, PREA auditor, prosecutor, agency counsel, civil litigator, writer, subject matter expert instructor within public safety agencies, as well as college and university adjunct professor. Learn more about Lexipol’s public safety solutions.
