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Friday, March 20, 2020

What Powers Do Governments Have Related to Isolation and Quarantine and Are They Enforceable?

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

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