United States: Can I Be Detained For Being Ill?

Introduction

The Ebola virus is an epidemic ravaging the West African countries of Liberia, Sierra Leone, and Guinea, and threatens to become a broader pandemic. The first known cases of Ebola infected individuals being in the U.S. were two American healthcare workers who contracted the disease while caring for patients in Liberia, and were then transported back into the U.S. to receive treatment. The infected healthcare professionals were transported in specially equipped vehicles (both ground and air transportation) and assisted by other healthcare professionals in "Haz-Mat" type protective gear. Once in the U.S., both were quarantined in special care units in hospitals for a period of several weeks. With the use of experimental medications not yet certified for public use by the Food and Drug Administration, the two workers fully recovered from their illness. No one else contracted the virus from these two individuals.

The next case of Ebola diagnosed in the U.S. was an individual who traveled to Dallas, Texas, from Liberia. After arriving in the U.S. he had lived in close contact with family members in an apartment complex in Dallas. He became symptomatic and was eventually diagnosed with Ebola and admitted to a Dallas Hospital. The patient died shortly thereafter. His family members were placed in quarantine for 21 days before being cleared as virus-free. Shortly thereafter, two nurses who provided care for that individual were diagnosed with the virus. They were also placed in isolation while receiving treatment. At the time of this writing another health care professional had just been diagnosed in New York City. By the time this is being read, there have likely been additional cases diagnosed.

With these first cases of Ebola infection originating in the U.S. came calls for stronger and swifter governmental action to contain the virus and prevent further spread of the disease. Among the steps some have called for are travel bans and mandatory quarantine of anyone who has recently been in the West African countries. Following the Ebola diagnosis in New York, the governor of that state as well as the governor of New Jersey announced plans for the future mandatory quarantine of health care workers returning to those states who had been in contact with Ebola victims in the affected countries.

In all of the reported cases of Ebola in the U.S., the patients/victims apparently were compliant with the quarantine and isolation efforts. But what if the carrier or suspected carrier is not compliant, and refuses to be isolated or quarantined? What if he/she wants to take a commercial flight for interstate or international travel while positive for the virus? Are U.S. citizens subject to involuntary detainment for the purpose of isolation and quarantine? The purpose of this paper is to summarize the authority of the federal government and the State of Tennessee in placing restrictions on individual liberties when necessary to prevent the spread of communicable diseases.1

Federal Authority

The federal government's authority in this area is grounded in the Commerce Clause of Article I, Section 8 of the United States Constitution. Accordingly, the federal government's responsibility is limited to efforts at preventing the spread of communicable diseases into the U.S. from foreign nations, and among and between the states. The authority of the Secretary of Health and Human Services is delegated to the Centers for Disease Control (CDC) and the Division of Global Migration and Quarantine.2 Through these offices, the federal government takes a number of steps to prevent the spread of communicable diseases, including: (1) the operation of Quarantine Stations at ports of entry; (2) establishment of standards for medical examination of persons destined for the U.S.; and (3) administration of quarantine regulations governing the international and interstate movement of persons, animals and cargo.3

A threshold question is what is a "communicable disease" for the purpose of qualifying an individual for possible isolation or quarantine? A list of quarantinable communicable diseases is set forth by Executive Order which can be and is amended from time to time.4 By Executive Order dated July 31, 2014, the list of quarantinable communicable diseases was amended to include "severe acute respiratory syndromes" falling within certain defined parameters. The list also includes "viral hemorrhagic fevers." A full list of quarantinable communicable diseases may be found on the CDC website.5 The Ebola virus is a communicable disease.

The statutory basis for the federal government's authority in this area is 42 USCS §264, which extends plenary rulemaking authority to the Surgeon General, with the approval of the Secretary of Health and Human Services, "to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession."6 The enabling statute specifically provides for the apprehension, examination, and detention of individuals reasonably believed to be infected with a qualifying communicable disease and coming into a state from a foreign county or from another state. If found to have a communicable disease, such individual may be detained "for such time and in such manner as may reasonably be necessary."7 Implementing regulations are codified at 42 Code of Federal Regulations, Parts 70 and 71. The violation by any person of a law or regulation governing quarantine for a communicable disease is punishable by a fine of not more than $1,000 or by imprisonment for not more than one year, or both.8

As discussed below in regard to Tennessee law in this area, the federal government recognizes the individual states have the power and authority to control the spread of disease within their respective borders. Therefore, the federal statute expressly and affirmatively rejects any federal preemption of state law in the field.9 If, however, the Director of the CDC determines measures taken by state or local authorities are insufficient to prevent the interstate spread of communicable disease, he/she may "take such measures as he/she deems reasonably necessary" to prevent it.10

Conspicuously absent from the federal statutory and regulatory scheme is any affirmative procedure for a pre- or postdeprivation notice and the right to be heard by a judge or magistrate, or any other form of due process safeguards. The absence of such a provision in the statute and regulations does not mean that such rights are precluded, but it clearly puts the burden on the potential detainee to seek injunctive or other form of extraordinary relief, or perhaps a writ of habeas corpus from a court of law.

State of Tennessee Authority

The several states have the authority to protect and promote the public health, safety and welfare through the states' inherent police powers. This certainly extends to taking all reasonable and lawful measures to detect communicable disease and prevent its spread within a state's borders. The Tennessee laws on the subject matter of quarantine and isolation of persons and premises to prevent the spread of communicable disease are a patchwork of measures and are outdated in some respects. For example, the only diseases specifically named in the relevant Tennessee law and rules are cholera, yellow fever, smallpox, and tuberculosis. Unlike the federal scheme, there is no rule or executive branch document listing of communicable diseases that can be easily and quickly updated. There is a definition of "Communicable Disease" in the Rules of the Department of Health which appears to be broadenough to include the Ebola virus.11 But despite some shortcomings of Tennessee law in this area, it does have an important feature which is lacking in federal law — an affirmative statement and process for a pre-deprivation notice and hearing, and other due process safeguards (discussed below).

Primary authority for implementing and enforcing the quarantine laws in the State of Tennessee is vested with the Commissioner of Health and its designees.12 Derivative authority is also vested in the "municipal or county health authorities" as directed and prescribed by the Commissioner of Health.13 Pursuant to T.C.A. §68-1-201(a) the Commissioner of Health is authorized to: (1) "declare quarantine whenever, in the commissioner's judgment, the welfare of the public requires it;" (2) promulgate rules and regulations for the prevention of the introduction of "epidemic disease" into the state; and (3) "carry into effect such rules and regulations as, in the commissioner's judgment, will, with the least inconvenience to commerce and travel, prevent the spread of the disease."

Rules implementing the commissioner's statutory authority are codified at Tenn. Comp. R. & Regs. Chapter 1200-14-4. The Rules set forth the "procedures to be followed by the Commissioner, health officers, and their designees, in carrying out disease control enforcement activities involving persons or premises that pose a health threat to others."14 If the commissioner reasonably believes based upon clinical or epidemiological evidence that a threat health to others from a communicable disease exists, he/she may issue a "health directive."15

A health directive is a statement, based upon clinical or epidemiological evidence, that such a threat exists, which requires a person to cooperate with health authorities' efforts to prevent or control transmission of the disease.16 Such cooperative measures may include, without limitation, submitting to medical testing, participation in treatment programs, isolation and/or quarantine, and preventing or restricting access to affected premises.17 The health directive must be individual and specific, and may not be issued to a class of persons.18 The isolation or quarantine may be effectuated in places such as the person's home or in a medical institution, but in no case may a person be so detained in a correctional facility.19 The individual has a right to appeal the health directive decision to the Office of the Chief Medical Officer, and the CMO must issue a decision within five business days of its receipt.

If the subject of a health directive is dissatisfied, or refuses to comply, the commissioner may file a petition for a Public Health Measure with the General Sessions Court of the county where the alleged carrier lives or can be found.20 A public health measure is in essence a health directive that is issued by the General Sessions Court after a hearing. The rules provide for a temporary emergency hold of an individual for up to five days pending a hearing on the merits, which temporary hold may be ordered by the court upon petition of the commissioner supported by affidavit. A temporary hold may be extending for up to a total of fifteen days upon approval of the court.21

The carrier must be served with notice of the petition and hearing at least five days prior to the hearing. The notice must set forth the grounds and underlying facts that demonstrate the carrier poses a health threat to others, the nature of the relief south, and that the relief sought is the least restrictive measure to protect the public health. The Department of Health has the burden of proving there is a substantial likelihood the carrier or premises poses a health threat to others by clear and convincing evidence.22 The decision of the General Sessions court may be appealed as provided by law for any other civil proceeding, but the court's decision is not stayed by an appeal, according to the Rule.23

Conclusion

The authority to control and prevent the spread of communicable diseases is shared among the federal and state governments. Federal authority is limited to cases of potential international and interstate proliferation while the several states have the authority to control communicable diseases within their borders. The authority of both the federal and state governments includes the power to detain an individual carrier or potential carrier in order to protect the public health safety and welfare.

The federal law in this area is expansive in its scope and includes no affirmative provisions to afford procedural due process for affected citizens. Tennessee law includes more limitations on the discretion of the government to restrict the liberty interests of its citizens, while still allowing the government to take actions to protect the public health, safety and welfare. Importantly, Tennessee law affords fundamental due process protections of notice and an opportunity to be heard by a court of law.

Footnotes

1. The scope of this writing is limited to individual civilian citizens. Laws regarding the subject matter relating to military personnel, times of war, navigation and aircraft, import/export of goods, animals and a myriad of others is beyond its scope, as is a summary of relevant laws in all 50 states.

2. CDC, Quarantine and Isolation, http://www.cdc.gov/  quarantine/specificlawsregulations.html (provides links to specific laws and regulations).

3. Id.

4.  42 C.ER. §§70.2, 70.6.

5. CDC, Quarantine and Isolation, http://www.cdc. gov/quarantine/quarantineisolation.html (provides explanation of quarantine and isolation).

6. 42 U.S.C. §264(a).

7. 42 U.S.C. §264(d).

8. 42 U.S.C. §27 l (a).

9. 42 U.S.C. §264(e).

10. 42 CFR §70.2.

11. TENN. COMP. R. & REGS. 1200-14-4-.02(6).

12. See, e.gTENN. CODE ANN. §68-1-201.

13. TENN. CODE ANN. § 68-5-103.

14. TENN. COMP. R. & REGS. 1200-14-4-.01.

15. Id. at 1200-14-4-.04(1).

16. Id. at 1200-14-4-.02(10).

17. Id. at 1200-14-4-.04(2).

18. Id. at 1200-14-4-.04(1).

19.Id. at 1200-14-4-.04(2).

20.Id. at 1200-14-4-.04(4), (7).

21. Id. at 1200-14-4-.05.

22. Id. at 1200-14-4-.06(1).

23. Id. at 1200-14-4-.06(4). The legitimacy of an administrative rule purporting to limit the court's discretion to issue a stay is dubious.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions