As Illinois residents and businesses prepare for a possible state-wide "stay at home" order, we have been receiving a number of
questions related to the scope of government’s powers related to a stay at home order or a quarantine, as well as related to the enforceability of such
orders, so we put together a summary of the applicable laws.
In addition to serving as medical
functions, isolation and quarantine also are “police power” functions, derived
from the right of the state to take action affecting individuals for the
benefit of society.
Federal Government Authority
The federal government derives its
authority for isolation and quarantine from the Commerce Clause of the U.S.
Constitution. Under section 361 of the Public Health Service Act (42 U.S. Code
§ 264), the U.S. Secretary of Health and Human Services is authorized to take
measures to prevent the entry and spread of communicable diseases from foreign
countries into the United States and between states. The authority for carrying
out these functions on a daily basis has been delegated to the Centers for
Disease Control and Prevention (CDC).Under 42 Code of Federal Regulations parts
70 and 71, CDC is authorized to detain, medically examine, and release persons
arriving into the United States and traveling between states who are suspected
of carrying these communicable diseases. As part of its federal authority, CDC
routinely monitors persons arriving at U.S. land border crossings and
passengers and crew arriving at U.S. ports of entry for signs or symptoms of
communicable diseases. When alerted about an ill passenger or crew member
by the pilot of a plane or captain of a ship, CDC may detain passengers and
crew as necessary to investigate whether the cause of the illness on board is a
communicable disease.
State, Local, and Tribal Law
In the United States, state police power
comes from the Tenth Amendment to the Constitution, which gives states the
rights and powers "not delegated to the United States." States are
thus granted the power to establish and enforce laws protecting the welfare,
safety, and health of the public, including the power to protect the public and
public health from the pandemics. To control the spread of disease within their
borders, states have laws to enforce the use of isolation and quarantine. These
laws can 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 also have police power
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.
Illinois—Department of Public Health Act
Department of Public Health Authority — 20 ILCS 2305/2(a)
In Illinois, the State Department of Public Health has
general supervision of the interests of the health and lives of the people of
the State. It has supreme authority in matters of quarantine and isolation, and may declare and enforce quarantine and
isolation when none exists, and may modify or relax quarantine and isolation
when it has been established.
The provisions of the Illinois Administrative Procedure Act
are hereby expressly adopted and shall apply to all administrative rules and
procedures of the Department of Public Health under this Act, except that
Section 5-35 of the Illinois Administrative Procedure Act relating to
procedures for rule-making does not apply to the adoption of any rule required
by federal law in connection with which the Department is precluded by law from
exercising any discretion.
All local boards of health, health authorities and
officers, police officers, sheriffs and all other officers and employees of the
state or any locality shall enforce the rules and regulations so adopted and
orders issued by the Department pursuant to this Section.
Department Authority to Order Quarantine - 20 ILCS
2305/2(b) & 20 ILCS 2305/2(c)
20 ILCS 2305/2(b): Subject to the provisions of subsection
(c), the Department may order a person or group of persons to be quarantined or
isolated or may order a place to be closed and made off limits to the public to
prevent the probable spread of a dangerously contagious or infectious disease,
including non-compliant tuberculosis patients, until such time as the condition
can be corrected or the danger to the public health eliminated or reduced in
such a manner that no substantial danger to the public's health any longer
exists.
20 ILCS 2305/2(c): The Department may, however, order a
person or a group of persons to be quarantined or isolated or may order a place
to be closed and made off limits to the public on an immediate basis without
prior consent or court order if, in the reasonable judgment of the Department,
immediate action is required to protect the public from a dangerously
contagious or infectious disease.
Department Enforcement Authority When Local Authorities
Neglect or Refuse to Act - 20 ILCS 2305/2(a)
The Department of Public Health shall investigate the
causes of dangerously contagious or infectious diseases, especially when
existing in epidemic form, and take means to restrict and suppress the same,
and whenever such disease becomes, or threatens to become epidemic, in any locality
and the local board of health or local authorities neglect or refuse to enforce
efficient measures for its restriction or suppression or to act with sufficient
promptness or efficiency, or whenever the local board of health or local
authorities neglect or refuse to promptly enforce efficient measures for the
restriction or suppression of dangerously contagious or infectious diseases,
the Department of Public Health may enforce such measures as it deems necessary
to protect the public health, and all necessary expenses so incurred shall be
paid by the locality for which services are rendered.
Department Supplementary Power Clause - 20 ILCS 2305/2(j)
This Section shall be considered supplemental to the
existing authority and powers of the Department and shall not be construed to
restrain or restrict the Department in protecting the public health under any
other provisions of the law.
Penalties - 20 ILCS 2305/8.1
Whoever violates or refuses to obey any rule or regulation
of the Department of Public Health shall be deemed guilty of a Class A
misdemeanor. The Director of Public Health shall institute prosecutions and
proceedings for violation of the rules and regulations adopted by the
Department of Public Health, provided that he may designate a local board of
health or local health officer to institute prosecutions or proceedings for
violation of those rules and regulations adopted by the Department. Each
State's Attorney shall prosecute all persons in his county violating or
refusing to obey the rules and regulations of the Department of Public Health.
All fines or judgments collected or received shall be paid to the County
Treasurer of the county in which prosecution is conducted.
Illinois Administrative Code
77 Ill. Adm. Code 690.10—Definitions
“Certified Local Health Department" − A local health
authority that is certified pursuant to Section 600.210 of the Certified Local
Health Department Code (77 Ill. Adm. Code 600).
"Local Health Authority" − The health authority
(i.e., full-time official health department, as recognized by the Department)
having jurisdiction over a particular area, including city, village, township
and county boards of health and health departments and the responsible
executive officers of those boards, or any person legally authorized to act for
the local health authority. In areas without a health department
recognized by the Department, the local health authority shall be the
Department.
77 Ill. Adm. Code 690.1305—Department of Public Health
Authority
(f) The Department has primary jurisdiction to isolate or
quarantine persons or groups of persons if a dangerously contagious or
infectious outbreak has affected more than one county or has multi-county,
statewide or interstate public health implications. If isolation is imposed
by the Department, the certified local health department may not alter, amend,
modify, or rescind any Department order without the express permission of the
Department. The Department may rescind any order issued by a certified
local health department if the need arises and shall notify the local authority
of that action.
77 Ill. Adm. Code 690.1310—Local Health Authority
a) All local boards of health, health authorities and
officers, police officers, sheriffs and all other officers and employees of the
State or any locality shall enforce the rules in this Subpart and orders issued
by the Department pursuant to Section 2 of the Act. (Section 2(a) of the Act)
b) This Subpart applies to all local health departments
certified pursuant to the Certified Local Health Department Code (77 Ill. Adm.
Code 600).
c) In accordance with Section 2310-15 of the Department of
Public Health Powers and Duties Law, the Department has the general authority
to delegate to a certified local health department, for the purpose of local
administration and enforcement, the duties that the Department is authorized to
enforce. Due to the need for immediate action to respond to a threat of a
dangerously contagious or infectious disease, the Department delegates its
powers to issue orders for isolation, quarantine or closure; physical
examinations and tests; collection of specimens; administration of vaccines,
medications and treatments; and observation and monitoring and to issue and
enforce orders to certified local health departments within the State of
Illinois.
77 Ill. Adm. Code 690.1315—Responsibilities and Duties of
the Certified Local Health Department
a) The certified local health department shall, in
coordination with the Department, administer and enforce the standards set
forth in this Subpart.
b) The certified local health department shall have the
authority to:
1) Investigate any case or suspected case of a reportable
communicable disease or condition; and
2) Institute disease control and contamination control measures,
including physical examination, testing, counseling, treatment, vaccination,
decontamination of persons, isolation, quarantine, inspection and closure of
buildings and facilities, or other measures considered necessary.
f) In consultation with local health care providers, health
facilities, emergency management personnel, law enforcement agencies, animal
control, schools, the local judicial system, and any other entity that the
certified local health department considers necessary, the certified local
health department shall establish plans, policies, and procedures for
instituting and maintaining emergency measures necessary to prevent the spread
of a dangerously contagious or infectious disease or contamination.
77 Ill. Adm. Code 690.1340—Enforcement
a) An order issued by the Department, a
certified local health department or the circuit court in accordance with this
Subpart shall be enforced by all local and statewide law enforcement, and all
other officers and employees of any political subdivision within the
jurisdiction of the certified local health department.
b) The Department or certified local health department
may request the assistance of police officers, sheriffs, and all other officers
and employees of any political subdivision within the jurisdiction of the
Department or certified local health department to apprehend, hold, transport,
quarantine or isolate a person who is subject to an order if that person is
uncooperative or unwilling to adhere to prescribed treatment or medical
instruction of the Department or certified local health department.
77 Ill. Adm. Code 690.1415—Penalties
b) A public health order issued by a certified local
health department under this Subpart is equivalent to, shall be enforced as,
and carries the same penalty as an order issued by the Department directly.
Local Emergency Powers—Quarantine and Isolate
Chicago and Oak Park recently issued a “Shelter-in-place”
Order. Both Chicago and Oak Park have certified Public Health Departments and
their Public Health Directors exercised their authority under 20 ILCS 2305/2 of
the Illinois Department of Public Health Act and the Illinois Administrative
Code provisions above, to issue such orders.
Cities or villages with home rule authority could have
existing laws in effect, or adopt laws, which would empower their Public Health
Director to make “reasonable rules, regulations and orders . . . as may from
time to time be deemed necessary for the preservation and improvement of the
public health and for the suppression of disease” in cases of emergency.
Perhaps such orders can be exercised by a mayor or village president under an
emergency powers ordinance.
Governor’s Powers—Generally
The Illinois Constitution, Article V, Section
8, states that "The Governor shall have the supreme executive power, and
shall be responsible for the faithful execution of the laws.”
Using his constitutional authority, Governor
Pritzker declared a state of emergency related to COVID-19, and he has issued
several executive orders related to the management of COVID-19. He is given the power to make such a
declaration and take such action under the Illinois Constitution and under the
Illinois Emergency Management Agency Act, 20 ILCS 3305/1.
Illinois Emergency Management Agency Act
Emergency Powers of Governor
In the event of a disaster, as defined in 20 ILCS 3305/4,
the Governor may, by proclamation declare that a disaster exists. 20 ILCS
3305/7. Upon such proclamation, the Governor shall have and may exercise for a
period not to exceed 30 days the emergency powers delineated in the Act,
including, but not limited to: (6) recommending the evacuation of all or part
of the population from any stricken or threatened area within the State if the
Governor deems this action necessary; (8) controlling ingress and egress to and
from a disaster area, the movement of persons within the area, and the
occupancy of premises therein. Accordingly, the preceding statutory authority
purports to empower the Governor to effectuate a quarantine.
Also, under 20 ILCS 3305/10(d), the Governor is empowered
to determine which municipal corporations, other than those specified in
paragraph (c) of this Section, need emergency services and disaster agencies of
their own and require that they be established and maintained. The Governor
shall make these determinations on the basis of the municipality's disaster
vulnerability and capability of response related to population size and
concentration.
Furthermore, the Governor is authorized to prepare a
comprehensive plan and program for the emergency management of this State,
which shall both be integrated into and coordinated with emergency management
plans and programs of the federal government and of other states whenever
possible and which plan and program may include: (f) furnishing assistance to
political subdivisions in designing emergency operations plans. 20 ILCS
3305/6(c)(2)(f).
In accordance with 20 ILCS 3305/10(a), each political
subdivision within this State shall be within the jurisdiction of and served by
the Illinois Emergency Management Agency and by an emergency services and
disaster agency responsible for emergency management programs. Since the
Governor has general direction and control of the Illinois Emergency Management
Agency and shall be responsible for the carrying out of the provisions of this
Act (20 ILCS 3305/6(a)), the Governor appears statutorily authorized to assist
political subdivisions during emergencies.
Local Disaster Declarations by Municipalities
The principal executive officer of a municipality, or of a
township located in a county having a population of more than 2,000,000 (20
ILCS 3305/10), may make a local disaster declaration pursuant to 20 ILCS
3305/11(a).
The effect of such a declaration is to activate the
emergency operations plan of that political subdivision and to authorize the
furnishing of aid and assistance under that plan. 20 ILCS 3305/11(b). This is
only helpful if a particular local government has adopted an emergency
operations plan.
Emergency Services and Disaster Plans
Each municipality with a population over 500,000 shall
maintain an emergency services and disaster agency which has jurisdiction over
and serves the entire municipality. A municipality with a population less than
500,000 may establish, by ordinance, an agency or department responsible for
emergency management within the municipality's corporate limits. 20 ILCS
3305/10(c).
Each emergency services and disaster agency shall prepare
an emergency operations plan for its geographic boundaries that complies with
planning, review, and approval standards promulgated by the Illinois Emergency
Management Agency. The Illinois Emergency Management Agency shall determine
which jurisdictions will be required to include earthquake preparedness in their
local emergency operations plans.20 ILCS 3305/10(g).
Moreover, in carrying out the provisions of this Act, 20
ILCS 3305/10(j) authorizes each political subdivision to enter into contracts
and incur obligations necessary to place it in a position effectively to combat
the disasters as are described in Section 4, to protect the health and safety
of persons, to protect property, and to provide emergency assistance to victims
of those disasters. If a disaster occurs, each political subdivision may
exercise the powers vested under this Section in the light of the exigencies of
the disaster and, excepting mandatory constitutional requirements, without
regard to the procedures and formalities normally prescribed by law pertaining
to the performance of public work, entering into contracts, the incurring of
obligations, the employment of temporary workers, the rental of equipment, the
purchase of supplies and materials, and the appropriation, expenditure, and
disposition of public funds and property.
Illinois Municipal Code—Mayoral Extraordinary Powers During
Emergencies—65 ILCS 5/11-1-6
Under the Illinois Municipal Code, the corporate
authorities of each municipality may by ordinance grant to the mayor the
extraordinary power and authority to exercise, by executive order, during a
state of emergency, such of the powers of the corporate authorities as may be
reasonably necessary to respond to the emergency. Such ordinance shall
establish standards for the determination by the mayor of when a state of
emergency exists, and shall provide that the mayor shall not exercise such
extraordinary power and authority except after his signing, under oath, a
statement finding that such standards have been met, setting forth facts to
substantiate such findings, describing the nature of the emergency, and
declaring that a state of emergency exists. Such statement shall be filed with
the clerk of the municipality as soon as practicable. A state of emergency,
declared as provided in this section, shall expire not later than the adjournment
of the first regular meeting of the corporate authorities after the state of
emergency is declared.
Many municipalities have adopted such ordinances to permit
mayors to exercise broad powers in all different types of emergencies.
Park Districts, Libraries and Townships
Unlike for the State, municipalities and townships that are
in counties with populations in excess of 2,000,000 in population, there are no
specific statutes that give park districts, libraries and townships the ability
to declare a state of emergency.
Townships do possess expanded powers to provide emergency
financial assistance and household assistance for 90 days after a presidential
declaration of a major disaster or emergency.
There are specific rules about the expanded use of general assistance
funds in such situations. However,
townships cannot use State funds to provide relief, but they may be able to
provide relief to families in need without regard to traditional eligibility
requirements pursuant to 305 ILCS 5/6-9 and 6-10.
Local Police Enforcement
The legal authority above, specifically 77 Ill. Adm. Code
690.1315 and 77 Ill. Adm. Code 690.1340 appears to be a legitimate legal basis
for the exercise of police authority. The extent to which police departments
exercise these powers is a matter of local discretion.
Who Is in Charge During Quarantine and
Isolation?
The federal government
• Acts to prevent the
entry of communicable diseases into the United States. Quarantine and isolation
may be used at U.S. ports of entry.
•
Is authorized to take
measures to prevent the spread of communicable diseases between states.
•
May accept state and
local assistance in enforcing federal quarantine.
•
May assist state and
local authorities in preventing the spread of communicable diseases.
State, local, and tribal authorities
•
Enforce isolation and
quarantine within their borders.
It is possible for federal, state, local,
and tribal health authorities to have and use all at the same time separate but
coexisting legal quarantine power in certain events. In the event of a
conflict, federal law is supreme.
Federal Enforcement
If a quarantinable disease is suspected or
identified, CDC may issue a federal isolation or quarantine order. Public
health authorities at the federal, state, local, and tribal levels may
sometimes seek help from police or other law enforcement officers to enforce a
public health order. U.S. Customs and Border Protection and U.S. Coast Guard
officers are authorized to help enforce federal quarantine orders. Breaking a
federal quarantine order is punishable by fines and imprisonment. Federal law
allows the conditional release of persons from quarantine if they comply with
medical monitoring and surveillance. In the rare event that a federal order is
issued by CDC, those individuals will be provided with an order for quarantine
or isolation.
Specific Federal Laws and Regulations
Governing the Control of Communicable Diseases
Post Authored by Keri-Lyn Krafthefer & Eugene Bolotnikov, Ancel Glink
