The Cochran Firm Legal Blog

Mandatory Ebola Quarantines Expose Legislative Issues

By Caleb Thurston, Intern

The Cochran Firm

Since the outbreak of Ebola, U.S. medical and military professionals are traveling to Ebola infected communities of Western Africa to provide assistance to these areas. This assistance is beneficial in the sense that it seeks to prevent further outbreak of Ebola by attacking the disease’s origin. However, traveling to provide assistance also creates several potential health and safety risk issues for the general public upon returning to the United States.

As the first round of these volunteers are beginning to return to the U.S., federal and state governments are finding themselves legislatively unequipped to prevent further spread of Ebola. Outbreaks of other communicable diseases in the past have led government officials to look at the Pentagon’s Department of Defense policy on this issue. This policy states that upon returning from areas infected by communicable diseases, as long as individuals are asymptomatic, they may not be detained.

Even though this federal policy guides the analysis of this issue, the dilemma is that this policy is based on a presumption. The presumption is that a person cannot transport communicable diseases unless the person is showing symptoms. However, this presumption is flawed because people infected with Ebola may not show signs of the illness for up to twenty days after exposure. Under this federal policy, people carrying Ebola returning to the U.S. could not be detained or quarantined since they would likely not show symptoms initially. Then, once these people arrive back in their home communities, these symptoms could activate, making them contagious, potentially infecting those around them and the general public.

While individual states typically use the Department of Defense’s policy as a guideline for how to handle incoming travelers from infected locations, each state has the majority of authority to pass more restrictive laws regarding health and welfare. The concept of “federalism” provides that any authority not expressly given to the federal government in the constitution is passed down to the states. The states may independently govern these issues as so long as their regulations do not violate any individual’s fundamental constitutional rights by confining them without due process of law. Issues arise as some states take more restrictive measures such as mandatory quarantines of asymptomatic individuals without their consent or a valid court order.

Pentagon officials refuse to use the word quarantine and refer to these procedures as controlled monitoring. Mandatory controlled monitoring may take different forms. The U.S. Army is mandating detainment of asymptomatic soldiers for twenty-one days at a secured facility in Italy before returning to the United States. Department of Health officials in New York City are mandating in-house detainment for twenty-one days, under both passive and active monitoring. “Passive” is where individuals take their own temperature twice daily. “Active” is where state public health authorities visit the person’s house to take their temperature two to four times daily. In New York, detained individuals are given a due process hearing in regards to the constitutionality of their detainment. New York City is exempt from the statewide public health law, which mandates a magistrate’s order for detention. Here, the Commissioner of Health Department may authorize detentions.

In New Jersey, a medical volunteer was detained involuntarily in a hospital tent for twenty-one days, without a court order or a due process hearing. This person obtained legal counsel and is bringing a lawsuit challenging the constitutionality of her detainment. This first instance where a detainee has brought legal action against a state for mandatory Ebola quarantines may not be the last. Detained individuals would be required to put their entire life on hold for three weeks, could not travel freely, could not go to work, could risk losing their job, and could suffer severe strains on their finances and intimate relationships. Detainment could ultimately create a negative influence on future volunteerism.

Legislation must adapt to the discovery of new medical diseases that were not contemplated at the time of enactment. Whitehouse officials are still developing a tier-based approach. Under this plan, level of detainment would be related to possible contagiousness levels. However, it is still under development and more travelers are returning form Ebola infected areas each day.