Ebola and U.S. Quarantines: Q&A with James Hodge and Kim Weidenaar of the Network for Public Health Law

Oct 28, 2014, 2:04 PM

On Monday, the U.S. Centers for Disease Control and Prevention (CDC) released new guidelines for people who have been exposed to the Ebola virus, either returning home from affected West African countries or looking after patients in the United States.

The guidelines establish four levels of risk -- "high" risk, "some" risk, "low" risk and "no" risk -- and recommend restrictions and health monitoring for each category.

Under the guidelines, people at high risk of Ebola exposure would be confined to their homes in voluntary isolation, while people carrying some risk would have their health and movements monitored by local officials. Those at high risk or with some risk would have daily in-person check-ups from state and local health departments for 21 days.

Immediately after yesterday’s CDC press conference, NewPublicHealth spoke with James Hodge and Kim Weidenaar, attorneys with the Network for Public Health Law, responded to questions from NewPublicHealth about laws and regulations that impact quarantines.

NewPublicHealth: Is there any legal support under United States law for possible quarantines for returning health workers and travelers from West Africa? 

James Hodge and Kim Weidenaar: Yes, provided quarantine is limited in duration, consistent with due process, and based on known or suspected exposures.

Public health authorities must be prepared to demonstrate that 1) the subject of quarantine is actually or reasonably suspected of being exposed to an infectious condition, 2) that the infectious condition (like Ebola) poses a specific threat to the public’s health, 3) that the terms of quarantine are warranted, safe, and habitable, and 4) that procedural due process including fair notice, right to hearing, and right to counsel are provided. 

If less restrictive interventions than quarantine exist, these alternatives should be exercised instead of quarantine. CDC, under guidance released on Monday, recommends that states tailor the level of monitoring to the individual’s risk of exposure, using voluntary quarantine for known exposure and direct active monitoring for those with some risk of exposure during the length of the incubation period. 

Traditionally, health officials may restrict the movement of an individual or group of individuals to limit the transmission of a communicable disease. Constitutionally grounded procedural protections are in place to regulate the use of such restrictions.

NPH: Does federal law regarding quarantine preempt state law, or is each state subject to its own laws with respect to quarantine?

James Hodge and Kim Weidenaar: Federal law can preempt state-based actions or inactions, but most quarantines for infectious diseases in the US are conducted via state or local laws.

While states have broad authorities to isolate and quarantine depending on their specific state laws, federal authority is limited to specific circumstances. CDC is empowered under the federal Public Health Service Act to isolate and quarantine individuals and groups traveling into the U.S. or between states. This authority applies to a specific list of diseases as specified by executive order, including Ebola.

CDC’s guidance and recommendations for individuals returning to the U.S. from West Africa is not binding on states and local governments. While the CDC is working with states to adopt and apply the guidelines, states are free to issue more or less stringent requirements.

NPH: Is there anything about Ebola that might require a new consideration of the law, or even the adoption of new laws?

James Hodge and Kim Weidenaar: Some jurisdictions may further seek emergency declarations if cases proliferate; otherwise routine public health laws may sufficiently address potential or actual cases. All states’ public health laws authorize isolation and quarantine of infected or exposed individuals for infectious or communicable diseases.  However, emergency declarations may authorize expedited testing, screening, vaccinating, isolation, and quarantine of suspected cases and exposures or suspend certain procedural requirements.

NPH:  How might state laws be applied so that the rights of returning workers and the potential health impact on the public could both be protected?

James Hodge and Kim Weidenaar:  Federal and state laws provide worker protections against disability discrimination and job loss related to public health powers.

Employers duties to provide a safe workplace further protect against potential infections especially in health care settings. In addition to federal laws like the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FLMA), several states protect individuals subject to isolation and quarantine orders by protecting their positions and pay.

For example, New Jersey law states that, “Any [permanent employees] who has been placed in isolation or quarantine . . . shall be reinstated to such employment or to a position of like seniority, status and pay.” N.J. Stat. § 26:13-16 (2005). New Mexico provides that, “An employer or an agent of an employer shall not discharge from employment a person who is placed in isolation or quarantine.” N.M. Stat. Ann. § 12-10A-16 (2003).

Finally, the general duty clause of the Occupational Safety and Health Act (OSHA Act) requires employers to provide a workplace “free from recognized hazards” that may cause injury or death, including from infectious diseases. Employees may have to take extra precautions, such as being asked to work from home for a set period.

NPH:  Who needs to be at the table so that all rights and public safety are taken into account?

James Hodge and Kim Weidenaar: Public Health Practitioners, Health Care Workers, Emergency Managers, Employers, Civil Rights Advocates, and the Public.

 

James G. Hodge, Jr., J.D., LL.M., is the Director of the Western Region Office of  the Network for Public Health Law and Associate Dean and Professor at the Sandra Day O’Connor College of Law, Arizona State University

Kim Weidenaar, JD, is the Deputy Director of the Western Region Office of the Network for Public Health Law.

This commentary originally appeared on the RWJF New Public Health blog.