By: Matthew F. Chase and Blair Wessels
COVID-19 has forced states to consider what legal options they possess to prevent the spread of and treat those who have been diagnosed with COVID-19. One of these options is the inherent police power of a state to quarantine or isolate infected persons for public health purposes. Various states have specified this power by statute or broadly incorporated it into their emergency powers. Although said power has been rarely used, states and local governments have already started to impose restrictions on large gatherings,1 made it a misdemeanor to travel for non-essential purposes,2 and even quarantine and isolate infected persons against their will.3 Given the severity of a state restricting a person’s movements and choices, the application of this power should be considered carefully.
West Virginia
Dr. Catherine C. Slemp, the current Commissioner and State Health Officer for the Bureau for Public Health in the West Virginia Department of Health and Human Resources, and the statutory “state director of health,” “is empowered to establish and strictly maintain quarantine at such places as [s]he may deem proper and forbid and prevent the assembling of the people in any place, when the state director of health or any county or municipal health officer deems that the public health and safety so demand.” W. Va. Code Ann. § 16-3-1. The “state board of health,” Bill J. Crouch, the Cabinet Secretary of the West Virginia Department of Health and Human Resources, “may adopt rules and regulations to obstruct and prevent the introduction or spread of . . . communicable or infectious diseases into or within the state,” which the state director of health has the power to enforce “by detention and arrest, if necessary.” Id. In addition to administration at the state level, the boards of health of any county or municipality also have quarantine powers, including confining infected persons, but these powers are subject to Dr. Slemp’s judgment of necessity. W. Va. Code Ann. § 16-3-2. Dr. Slemp or any county or municipal health officer also has the authority “to apply to the circuit court of the county in which [a nuisance affecting public health, including communicable and infectious diseases], exists, or to the judge thereof in vacation, for an injunction forthwith to restrain, prevent or abate such nuisance.” W. Va. Code Ann. § 16-3-6; see also Berkeley Cty. Comm’n v. Shiley, 170 W. Va. 684, 686 (1982).
On March 16, 2020, Jim Justice, the Governor of the State of West Virginia, declared a State of Emergency concerning the coronavirus, invoking the emergency powers set forth in W. Va. Code, 15-5-6 et seq.4 W. Va. Code Ann. § 15-5-6(a). During a state of emergency, the Governor has multiple emergency powers, including the power “to control ingress and egress to and from a disaster area or an area where large-scale threat exists, the movement of persons within the area and the occupancy of premises therein; . . . [and] [t]o perform and exercise other functions, powers and duties that are necessary to promote and secure the safety and protection of the civilian population.” W. Va. Code Ann. § 15-5-6(c)(6), (11). On March 23, 2020, Mr. Justice issued a subsequent order directing individuals within the state to stay at home or their place of residence unless performing an essential activity and non-essential businesses and operations to temporarily cease operations.5
Pennsylvania
In Pennsylvania, the Department of Health has the power to enforce quarantines. 71 Pa. Stat. Ann. § 532, 536. Local boards of health or departments of health also have the power to carry out appropriate control measures to curtail diseases, including isolation or quarantine. 35 Pa. Stat. Ann. § 521.5. In enforcing these provisions, the Department of Health or a local health authority that is a district office of the Department or a local health department (an “LMRO”) “shall direct isolation of a person . . . with a communicable disease or infection; surveillance, segregation, quarantine or modified quarantine of contacts of a person . . . with a communicable disease or infection; and any other disease control measure the Department or the local health authority considers to be appropriate for the surveillance of disease, when the disease control measure is necessary to protect the public from the spread of infectious agents.” 28 Pa. Code § 27.60(a), 61, 65. If a local health authority is not a LMRO, “it shall consult with and receive approval from the Department prior to taking any disease control measure.” 28 Pa. Code § 27.60(c). An isolated or quarantined person may be removed to another location subject to permission of the Department or local health authority. 28 Pa. Code § 27.67.
On March 6, 2020, Tom Wolf, the Governor of Pennsylvania, pursuant to the provisions of Subsection 7301(c) of the Emergency Management Services Code, 35 Pa. C.S. § 7101, et seq., proclaimed the existence of a disaster emergency because of COVID-19 throughout the Commonwealth of Pennsylvania.6 35 Pa. Stat. and Cons. Stat. Ann. § 7301(c). On March 19, 2020, Mr. Wolf issued a subsequent order superseding said proclamation, taking the drastic measure of prohibiting business that are not classified as “life sustaining businesses” from operating, “regardless of whether the business is open to members of the public.”7 This subsequent order specifies the power conferred upon the Governor to “[c]ontrol ingress and egress to and from a disaster area, the movement of persons within the area and the occupancy of premises therein.” 35 Pa. Stat. and Cons. Stat. Ann. § 7301(f)(7). On March 19, 2020, Rachel Levine, MD, the Secretary of the Department of Health, issued an order alongside Mr. Wolf regarding the closure of non-life sustaining businesses.8 On the local level, a governing body of a political subdivision may declare a local disaster emergency upon similar findings. 35 Pa. Stat. and Cons. Stat. Ann. § 7501(b).
Ohio
The Ohio Department of Health “shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority in matters of quarantine and isolation, which it may declare and enforce, when neither exists, and modify, relax, or abolish, when either has been established.” Ohio Rev. Code Ann. § 3701.13. The department may also “make special or standing orders or rules . . . for preventing the spread of contagious or infectious diseases, . . . and for such other sanitary matters as are best controlled by a general rule.” Id. The director of health has specific power to “investigate or make inquiry as to the cause of disease or illness, including contagious, infectious, epidemic, pandemic, or endemic conditions, and take prompt action to control and suppress it.” Ohio Rev. Code Ann. § 3701.14. Broadly the department and boards of health of a city or general health district have to power to both restrict the movement of and separate individuals from infected persons. Ohio Rev. Code Ann. § 3707.08. Various public officials are tasked with enforcing quarantine and isolation orders and the broader rules the department adopts. Ohio Rev. Code Ann. § 3701.56.
The governor of Ohio has vague powers “to act in the event of a disaster within the state.” Ohio Const. Article IX, Section 4. On March 9, 2020, Mike DeWine, Governor of the State of Ohio, pursuant to the authority vested in him by the state constitution, the laws of Ohio, and in accordance with Section 5502.22 of the Ohio Revised Code, declared a state of emergency concerning COVID-19.9 The above-referenced code section refers to the state’s emergency management agency within the department of public safety, which “plan[s], organize[s], and maintain[s] emergency management adequate to the needs of the state.” Ohio Rev. Code Ann. § 5502.22. An integral part of the agency’s emergency management is “civil defense,” which includes “[t]he control and traffic and panic situations” during a hazard as therein defined. Ohio Rev. Code Ann. § 5502.21(D)(1)(c), (I). On March 22, 2020, Amy Acton, MD, MPH, Director of the Ohio Department of Health, issued an order pursuant to the authority granted to her in R.C. 3701.13 directing that all persons stay at home unless engaged in essential work or activity.10
Kentucky
In Kentucky, “[w]hen the Cabinet for Health and Family Services believes that there is a probability that any infectious or contagious disease will invade this state, it shall take such action and adopt and enforce such rules and regulations as it deems efficient in preventing the introduction or spread of such infectious or contagious disease or diseases within this state, and to accomplish these objects shall establish and strictly maintain quarantine and isolation at such places as it deems proper.” Ky. Rev. Stat. Ann. § 214.020. Locally, city-county boards of health for cities of first class and counties containing such cities have the authority to enforce law and ordinances regarding quarantine. Ky. Rev. Stat. Ann. § 212.350, 370.
On March 6, 2020, Andy Beshear, Governor of the Commonwealth of Kentucky, by virtue of the authority vested in him by Chapter 39A of the Kentucky Revised Statutes, declared a State of Emergency for an immediate response to COVID-19.11 Ky. Rev. Stat. Ann. § 39A.010, 100(1), (2). Emergency powers granted to the governor or local chief executive officer during the period in which the emergency exists include “exclud[ing] all nonessential, unauthorized, disruptive, or otherwise uncooperative personnel from the scene of the emergency, and to command those persons or groups assembled at the scene to disperse . . . [and] declar[ing] curfews and establish[ing] their limits.” Ky. Rev. Stat. Ann. § 39A.100(1)(c)(f), (g), 100(2)(b), (c). The governor alone has the broader emergency power “[e]xcept as prohibited by this section or other law, to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population.” Ky. Rev. Stat. Ann. § 39A.100(1)(c)(j).
Indiana
The Indiana State Department of Health “may establish quarantine and may do what is reasonable and necessary for the prevention and suppression of disease.” Ind. Code Ann. § 16-19-3-9. Various public health authorities, including the state health commissioner of the state department, “may petition a circuit or superior court for an order imposing isolation or quarantine” on an individual if it has reason to believe that: 1) an individual has been infected with or exposed to a dangerous communicable disease or outbreak; and 2) “the individual is likely to cause the infection of an uninfected individual if the individual is not restricted in the individual’s ability to come into contact with an uninfected individual.” Ind. Code Ann. § 16-18-2-298.5(a); 16-41-9-1.5(a)(1), (2). Procedures concerning said petitions are set forth in Ind. Code § 16-41-9-1.5. Public health authorities “may issue an immediate order imposing isolation or quarantine on an individual if exigent circumstances, including the number of affected individuals, exist that make it impracticable for the public health authority to seek an order from a court, and obtaining the individual’s voluntary compliance is or has proven impracticable or ineffective.” Ind. Code Ann. § 16-41-9-1.5(k). Courts may also issue emergency orders of isolation or quarantine without a verified petition under certain circumstances. See Ind. Code § 16-41-9-1.5(g)-(j). Broadly, the Supreme Court of Indiana has recognized quarantine as also being a part of the state’s inherent police power, even when said power may incidentally affect interstate commerce. See State v. Clason, 213 Ind. 461, 467 (1938).
On March 6, 2020, Eric J. Holcomb, Governor of the State of Indiana, declared a public health disaster emergency attributable to COVID-19.12 Ind. Code Ann. § 10-14-3-12(a). “Disaster” is defined as “an occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural phenomenon or human act,” and includes epidemics and public health emergencies. Ind. Code Ann. § 10-14-3-1(a), (b)(21), (22). Powers given to the governor during a disaster emergency include “[c]ontrol ingress to and egress from a disaster area, the movement of persons within the area, and the occupancy of premises in the area.” Ind. Code Ann. § 10-14-3-12(d)(7). On March 23, 2020, Mr. Holcomb issued a subsequent order supplementing his earlier public health disaster emergency order dated March 9, 2020, ordering all individuals currently living in the state to stay at home or their place of residence unless for Essential Travel and Essential Activities as therein defined.13
Colorado
Under Colorado law, each county is charged with establishing and maintaining a public health agency or participating in a district public health agency. Colo. Rev. Stat. Ann. § 25-1-506(1). These agencies have the authority to “establish, maintain, and enforce isolation and quarantine,” and they have the authority to “exercise physical control over property and over the persons of the people within the jurisdiction of the agency as the agency may find necessary for the protection of public health.” Colo. Rev. Stat. Ann. § 25-1-506(3)(b)(vi). If an individual fails to follow quarantine or isolation, that individual will be charged with a class 1 misdemeanor and subject to a fine or imprisonment. Colo. Rev. Stat. Ann. § 25-1-516(3).
The Governor of Colorado “is responsible for meeting the dangers of the state and people presented by disasters.” Colo. Rev. Stat. Ann. § 24-33.5-704(1). To combat disasters, the governor may “issue executive orders proclamations, and regulations” that have the force of law. Colo. Rev. Stat. Ann. § 24-33.5-704(2). Once the governor declares a state of emergency, Colorado’s disaster response and recovery emergency plans are activated. Colo. Rev. Stat. Ann. § 24-33.5-704(5). During a state of emergency, the governor can activate the National Guard; transfer the direction, personnel, or functions of state departments and agencies; allocate and distribute resources; and control ingress to and egress from a disaster area. Colo. Rev. Stat. Ann. § 24-33.5-704(6)-(7). On March 10, 2020, Governor Jared Polis issued an executive order declaring a state of emergency over the COVID-19 outbreak.14 On March 22, 2020, Mr. Polis issued a subsequent order to reduce in-person work requirements by fifty percent for non-critical workplaces due to the presence of COVID-19 in the state.15
District of Columbia
Under District of Columbia law, if the Mayor, in consultation with the Director of the Department of Health, believes an individual is affected with a communicable disease or is a carrier of a communicable disease, such that “the person’s presence in the general population is likely to cause death or seriously impair the health of other,” the Mayor may direct the person to be quarantined or isolated for treatment. D.C. Code Ann. § 7-133(a). The Mayor also has the authority to quarantine and isolate large groups of people or specific locations if necessary. D.C. Code Ann. § 7-133(c). Further, a “person who has been diagnosed as being affected with a communicable disease may be detained for as long as necessary to protect the public health.” D.C. Code Ann. § 7-135(b).
The Mayor of D.C. also has the authority to declare a state of emergency for the District of Columbia if the mayor believes the order necessary to protect the public’s peace, health, safety, or welfare. D.C. Code Ann. § 7-2304(a). Pursuant to a Mayor’s emergency executive order, a person who has been diagnosed as being affected with a communicable disease may be detained for medical reasons. D.C. Code Ann. § 7-2304(b)(14). By declaring a state of emergency, the mayor can also mobilize people and resources more quickly, including expending necessary funds to carry out emergency services; issue curfews; and control or regulate resources. D.C. Code Ann. § 7-2304(b), et seq. On March 11, 2020, Mayor Muriel Bowser declared a state of emergency and public health emergency in response to COVID-19.16, 17 On March 24, 2020, Ms. Bowser issued a subsequent order temporarily closing the on-site operation of all non-essential businesses and implementing a prohibition on large gatherings.18
1 Emily Shapiro, Jon Haworth, and Karma Allen, Coronavirus shuts down major cities, Trump asks Americans to avoid groups over 10 people, ABC News (Mar. 17, 2020, 8:12 P.M.), https://abcnews.go.com/US/coronavirus-live-updates-establishments-country-begin-shutting/story?id=69615056.
2 Order of the Health Officer of the County of Santa Clara Directing All Individuals Living in the County to Shelter At Their Place of Residence Except That They May Leave To Provide or Receive Certain Essential Services or Engage in Certain Essential Activities and Work For Essential Businesses and Governmental Services; Exempting Individuals Experiencing Homelessness From the Shelter In Place Order But Urging Them to Find Shelter and Government Agencies to Provide It; Directing All Businesses and Governmental Agencies to Cease Non-Essential Operations at Physical Locations in the County; Prohibiting All Non-Essential Gatherings of Any Number of Individuals; and Ordering Cessation of All Non-Essential Travel (Mar. 16, 2020), https://www.sccgov.org/sites/phd/DiseaseInformation/novel-coronavirus/Documents/03-16-20-Health-Officer-Order-to-Shelter-in-Place.pdf.
3 Scottie Andrew, A coronavirus patient refused to quarantine, so deputies are surrounding his house to force him to, CNN (Mar. 17, 2020, 8:12 P.M.), https://www.cnn.com/2020/03/17/us/kentucky-refused-quarantine-coronavirus-trnd/index.html.
4 State of West Virginia Executive Department At Charleston A Proclamation By the Governor (Mar. 16, 2020), https://governor.wv.gov/Documents/2020%20Proclamations/State-of-Emergency-March-16-2020.pdf.
5 State of West Virginia Executive Department At Charleston Executive Order No. 9-20 By the Governor (Mar. 23, 2020), https://governor.wv.gov/Documents/2020%20Executive%20Orders/STAY-AT-HOME-ORDER-MARCH-23-2020.pdf.
6 Commonwealth of Pennsylvania Office of the Governor Proclamation of Disaster Emergency (Mar. 6, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/03/20200306-COVID19-Digital-Proclamation.pdf.
7 Commonwealth of Pennsylvania Office of the Governor Order of the Governor of the Commonwealth of Pennsylvania Regarding the Closure of All Businesses That Are Not Life Sustaining (Mar. 19, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-TWW-COVID-19-business-closure-order.pdf.
8 Order of the Secretary of the Pennsylvania Department of Health Regarding the Closure of All Businesses That Are Not Life Sustaining (Mar. 19, 2020), https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319-Order-of-Secetary-of-PA-DOH-Closure-of-All-Businesses-That-Are-Not-Life-Sustaining.pdf.
9 Ohio Exec. Order No. 2020-01D (Mar. 9, 2020), https://content.govdelivery.com/attachments/OHOOD/2020/03/09/file_attachments/1396418/Executive%202020-01D.pdf.
10 Director’s Stay At Home Order (Mar. 22, 2020), https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
11 Ky. Exec. Order No. 2020-215 (Mar. 6, 2020), https://ewscripps.brightspotcdn.com/38/21/b8b110e84209ac8417179ffe3f01/2020-misc-2020-0215-266310.pdf?fbclid=IwAR3eSlDIGdNUkGnC17OGYrtsi4P_Rg6G0att6OS8-PK9J7j6XR0qQeCvnIM.
12 Ind. Exec. Order No. 20-02 (Mar. 6, 2020), https://www.in.gov/gov/files/20-02ExecutiveOrder(DeclarationofPublicHealthEmergencyforCOVID-19)FINAL.pdf.
13 Ind. Exec. Order No. 20-08 (Mar. 23, 2020), https://www.in.gov/gov/files/Executive_Order_20-08_Stay_at_Home.pdf.
14 Colo. Exec. Order No. D 2020 003 (Mar. 11, 2020), https://drive.google.com/file/d/1szJfU9WF36-lCVgRhXMAnJdlQyTSG83e/view.
15 Colo. Exec. Order No. D 2020 013 (Mar. 22, 2020), https://drive.google.com/file/d/1mCoHuNCFbxNNvPy9r2eUbavuMs0D-bi0/view.
16 D.C. Mayor’s Order No. D 2020-045 (Mar. 11, 2020), https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.DeclarationofPublicEmergency03.11.20.pdf.
17 D.C. Mayor’s Order No. D 2020-046 (Mar. 11, 2020), https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/MO.DeclarationofPublicHealthEmergency03.11.20.pdf.
18 D.C. Mayor’s Order No. D 2020-053 (Mar. 24, 2020), https://mayor.dc.gov/sites/default/files/dc/sites/mayormb/release_content/attachments/Mayor%27s%20Order%202020-053%20Closure%20of%20Non-Essential%20Businesses%20and%20Prohibiti….pdf.