FAQ: COVID-19 Emergency Legal Preparedness
March 27, 2020
This FAQ includes answers to questions that the Network has received and addressed in real-time concerning COVID-19 emergency legal preparedness and response in four key categories:
» Emergency Declarations & Public Health Powers
» Social Distancing Powers
» Liability Risks and Protections
» Emerging Issues
Emergency Declarations & Public Health Powers
Q: What is the extent of the authority for National Guard activation implemented by President Trump?
A: On March 22, 2020, President Trump issued a Memorandum of Support authorizing the National Guard to assist state governors in California, New York, and Washington with their respective state and local emergency assistance efforts under the Stafford Act and § 502 of Title 32 of the U.S. Code. During Title 32 activations, the Federal Emergency Management Agency (FEMA) and the Department of Homeland Security fund National Guard efforts, but troops still serve within their home states and report to their respective governors.
As of March 24, 2020, governors across the remaining states (besides NY, CA, and WA), and Puerto Rico, Guam, U.S. Virgin Islands and Washington, D.C., have mobilized components of their Army and Air National Guard to assist in responses to the COVID-19 pandemic, but have not yet sought Title 32 assistance. Florida Governor DeSantis called in National Guard troops to help administer drive through coronavirus testing.
Q: If a COVID-19 vaccine becomes available can a state enforce mandatory vaccines?
A: This depends specific state law. For example, Arizona’s Governor declared a public health emergency on March 11, 2020. Under Arizona statutory law, A.R.S. § 36-787(C), if there is an occurrence or imminent threat of certain diseases, the Governor, in coordination with the State health director, can issue orders that: “[m]andate treatment or vaccination of persons who are diagnosed with illness resulting from exposure or who are reasonably believed to have been exposed or who may reasonably be expected to be exposed.”In April 2019, the New York City Health Department declared a public health emergency in response to a measles outbreak and required unvaccinated individuals who lived in certain ZIP codes, who may have been exposed to measles, to receive a measles, mumps, rubella (MMR) vaccine. Individuals who did not receive the vaccine, or did not provide evidence of their immunity, could have been subject to a $1,000 fine.
Q: Where states have issued orders closing all non-essential businesses, can a locality also require a medical marijuana dispensary to close?
A: Whether a medical marijuana dispensary is required to close depends on the jurisdiction. In California, marijuana dispensaries have been deemed “essential,” meaning they are not required to close under the state’s ordered closure of non-essential businesses. Under a similar “stay at home” order in Illinois, the state issued social distancing guidance for medical marijuana dispensaries. Though deemed “essential,” several dispensaries in the state opted to suspend their businesses or moved to online service platforms. Massachusetts’ Governor Baker issued an order on March 23, 2020 closing all non-essential businesses. Medical marijuana dispensaries, but not recreational, were deemed “essential” businesses.
Q: What legal restrictions prevent hoarding of medications being tested for prevention and treatment of COVID-19 (e.g., chloroquine)?
A: Although the federal Food and Drug Administration (FDA) regulates virtually all approved and unapproved uses of medications, states primarily regulate pharmacies, including dispensing at community drug stores, large chains, in-store pharmacy counters and specialty pharmacies. States may choose to protect current supplies of medications for those patients requiring them for FDA approved uses. Ohio Governor DeWine authorized the Ohio State Board of Pharmacy to issue an emergency rule limiting the dispensing of chloroquine. The purpose of the rule is to ensure that patients who have conditions such as malaria, rheumatoid arthritis, and lupus that are being treated with these medications do not experience shortages during the COVID-19 outbreak.
Under § 4512 of the Defense Production Act, the President can prevent the hoarding of designated scarce materials. In a press conference on March 24, 2020, President Trump invoked this section to address price gouging and hoarding of medical supplies, subject to a forthcoming list of designated supplies and medications.
Q: Can a local jurisdiction issue a public health order that is more stringent or different from a state’s public health order?
A: Local jurisdictions may be authorized to declare a public health emergency. Among many examples, Boston declared a public health emergency on March 15, 2020. However, the scope of authority granted to local jurisdictions differs in each state. In some cases, local jurisdictions have initially issued more stringent public health orders than the state.
Q: What is the status of national emergency declarations?
A: On March 13, 2020, President Trump declared emergencies under the Stafford Act and the National Emergencies Act. A declared emergency under the Stafford Act facilitates an infusion of federal funds and support for state, tribal, and local governments to mitigate a public health emergency. Such declarations also allow for the waiver of certain laws, including key waivers of certain requirements for Medicare, Medicaid, and CHIP.
For example, the Centers for Medicare and Medicaid Services (CMS) approved Florida’s request for a § 1135 waiver on March 16, 2020. The approval, among other changes, enables the state to waive prior authorization requirements that create access barriers to needed services, streamline provider enrollment processes to ensure beneficiaries’ access to care, allow care to be provided in alternative settings such as if the alternative facility is unlicensed, provide administrative relief by suspending specific nursing home screening requirements, and extend deadlines for state fair hearing requests and appeals.
As of March 27, 2020, CMS has approved a total of at least 34 state Medicaid Section 1135 waivers. CMS released an 1135 Medicaid & CHIP Checklist to assist states with their requests. The waivers have a retroactive effect date of March 1, 2020, and will end upon termination of the federal declaration of public health emergency.
Q: Which state, tribal, and local jurisdictions have issued emergency declarations in response to COVID-19?
A: All 50 U.S. states have issued an emergency declaration. The Network for Public Health Law’s COVID-19 Emergency Legal Preparedness Primer also includes select tribal and local declarations of emergency, with links to the declarations, available on the Network’s website here.
For example, CMS approved Florida’s request for a Section 1135 waiver on March 16, 2020. The approval, among other changes, enables the state to waive prior authorization requirements that create access barriers to needed services, streamline provider enrollment processes to ensure beneficiaries’ access to care, allow care to be provided in alternative settings such as if the alternative facility is unlicensed, provide administrative relief by suspending specific nursing home screening requirements, and extend deadlines for state fair hearing requests and appeals.
Q: There are reported shortages of medical equipment necessary for ramping up testing and providing PPE to hospitals and healthcare providers – what is the federal government doing to ramp up production?
A: An executive order issued on March 18, 2020, invokes the Defense Production Act and gives the Department of Health and Human Services the ability to prioritize contracts so that U.S. government orders of surgical masks, disinfectants and other medical products are filled before any commercial or other orders.
Social Distancing Powers
Q: What powers does the military have to enforce quarantine restrictions on individuals on military bases?
A: Although the Department of Defense played a role in getting military sites approved for quarantine related to COVID-19, the Centers for Disease Control and Prevention is responsible for carrying out federal quarantines of civilians on military bases.
Q: What states have shelter-in-place or stay home orders been issued and how have they defined “essential personnel”?
A: As of March 24, 2020, there are at least 30 states in which full or partial orders shelter-in-place or stay at home orders have been issued entailing varying restrictions. States or municipalities that have issued stay home (or shelter-in-place) orders have generally defined essential businesses or personnel that are exempt from such orders. Many have crafted the definition of essential businesses using guidance from the Federal Government’s Guidance on Essential Critical Infrastructure. New York’s Governor Andrew Cuomo issued an executive order on March 20, 2020, directing that “100% of the workforce must stay home, excluding essential services” such as “shipping, media, warehousing, grocery and food production, pharmacies, healthcare providers, utilities, banks and related financial institutions.” New York published detailed guidance on what qualifies as essential businesses and services.
Some states require written documentation for essential workers to carry in public. Additionally, many states’ orders direct restaurants, bars, and other eating establishments to operate only for drive-thru, takeout, or delivery, and restrict other types of public spaces, like playgrounds, beaches, and parks.
Even in states that have not issued shelter-in-place orders, administrations have defined essential personnel. For example, on March 23, 2020, Arizona’s Governor proactively defined “essential services” in an effort to ensure consistent guidance across the state when applying guidelines from the CDC or other federal agencies.
Q: What are some allowed social distancing activities outside the home for persons under state and local shelter-in-place or stay home orders?
A: Many states’ shelter-in-place orders allow residents to leave their homes for specified reasons, such as to shop for groceries and other supplies; seek medical, dental, or veterinary care; provide care for others; exercise or engage in other outdoor activities; work at essential businesses; and utilize other essential services (e.g., post office, laundry). When people do need to go into public, the orders often direct them to maintain social distancing, including staying 6 feet away from others and reducing public transit use, if possible. For example, California’s Executive Order for the State of California, specifically includes exercise as an allowed activity. People may leave their homes “to engage in outdoor activity, provided the individuals comply with social distancing requirements, such as, by way of example and without limitation, walking, hiking, or running.”
Q: What type of enforcement mechanisms have states and localities used to support a stay home or shelter-in-place order?
A: While not all states have implemented enforcement mechanisms, some states have made non-compliance a misdemeanor offense and have also instituted civil fines. As an example, in Hawaii, non-compliance with the Governor’s stay home order is a misdemeanor punishable by up to 1 year of imprisonment and $5,000 fine.
Q: What are some limits to the U.S. federal government’s authority to limit travel or implement a national lockdown to contain the spread of COVID-19?
A: The federal government’s power to restrict or prevent travel is limited by the U.S. Constitution. The Constitution protects persons against: (1) the erection of “actual barriers to interstate movement”; (2) disparate treatment for intrastate travelers; and (3) government prohibitions of individuals from entering or leaving a state absent a compelling justification. Public health measures to reducing the spread of COVID-19 arguably presents a compelling interest, but the least restrictive measures must be employed. During declared emergencies, the use of social distancing (including closure of public places), isolation, and quarantine may be employed.Section 361 of the Public Health Service Act (42 U.S. Code § 264), authorizes the U.S. Secretary of Health and Human Services to take measures to prevent the spread of communicable diseases from foreign countries into the U.S. and between the states. Thus, quarantine and isolation measures undertaken must be for those entering the U.S. or those traveling between states. Quarantine, isolation, and other measures within state borders are governed by the states under their police powers. Due to the federal government’s authority over interstate commerce, there could be an attempt to restrict travel between states, however, this has not been employed in recent times.
Q: Would cordon sanitaire in the U.S. be constitutional?
A: Any attempt to impose cordon sanitaire would likely be challenged on constitutional grounds. A court may be unwilling to view such a lockdown as the less restrictive means of controlling COVID-19. For example in Jew Ho v. Williamson, 120 years ago, a California federal district court struck down San Francisco’s “lock down” of Chinatown because the court found it unlawfully targeted individuals on the basis of race.
Q: Are limitations on the right to assemble constitutional?
A: Government agents in various jurisdictions have issued orders limiting the right to assemble. For example, the Governor of North Carolina recently issued an executive order declaring a public health emergency, due to COVID-19, and banning assemblies of 100 people or more in places, such as auditoriums and theaters. The order excludes other places, such as airports or workplaces. A state enjoys broad police power to enact laws for the public’s health and safety. The North Carolina order is content neutral to the extent that it does not target a specific group, or type of locale, and it also furthers the state’s interest in protecting the health and safety of individuals in North Carolina. Such orders are more likely to be found constitutional compared with orders that are either discriminatory, do not further any important interest, or that discriminatorily target certain locales. During declared public health emergencies, some restrictions on the right to assemble may be more restrictive. For instance, on March 19, 2020, California’s governor issued a shelter in place order, for an indefinite period of time, ordering all residents to stay in their homes, and closing most businesses across the state to mitigate the impact of COVID-19. The more restrictions that are placed on the right to assemble, the greater the burden will be on the government to prove that it does not unnecessarily violate the right to assemble.
Q: Can states and municipalities suspend court proceedings?
A: States and municipalities have the authority to suspend court proceedings in declared emergencies. For example, the state of Arizona authorized limitations on court operations, including the avoidance of in-person proceedings.
Q: Are there any references or any model tribal codes related to public health emergencies, isolation, and quarantine?
A: CDC’s Public Health Law Program created a Menu of Selected Tribal Laws Related to Infectious Disease Control, including examples of tribal isolation and quarantine laws. In addition, the Network for Public Health Law developed a Tribal Public Health Law Resource document, with a variety of contacts that focus on tribal law and could potentially be of some guidance.
Liability Risks and Protections
Q: What liability protections exist for health care workers (HCW) during a public health emergency?
A: There are differenttypes of liability protections that may apply. As a general rule, liability protections typically may only protect HCWs from negligent acts, not willful, reckless, criminal, or grossly negligent misconduct. Sources of liability protections can include federal and state laws. Access the Network’s overview of liability protections during declared and non-declared emergency events here.
Q: Is there a waiver for health care providers to practice across state lines?
A: With regards to Medicare and Medicaid, CMS temporarily waived requirements that out-of-state providers be licensed in the state where they are providing services when they are licensed in another state (see COVID-19 Emergency Declaration Health Care Providers Fact Sheet). In addition, numerous states have expressly waived certain health care provider licensing requirements or delegated such authority to the applicable regulatory agencies pursuant to emergency declarations, including: Arizona, California, Florida, Louisiana, Mississippi, North Carolina, Tennessee, and Washington. The Federation of State Medical Boards (FSMB) has offered assistance to state medical boards and health departments in verifying licenses and credentials of providers and other health care professionals who wish practice across state lines.
Q: What are the legal requirements for service of quarantined and isolated individuals?
A: Service requirements may vary by jurisdiction, and some states have explicit provisions for handling the provision of service for quarantined or isolated individuals. In California, posting a quarantine order outside a home is an option available to health officials that would meet service requirements. Massachusetts regulations governing isolation and quarantine require the state department or local board of health to use “all reasonable means of communication to inform individuals” of orders during periods of isolation and quarantine. The minimal requirements include: (1) posting a notice in locations where people in and approaching the area are reasonably likely to see it; (2) publishing a notice in a newspaper at least once weekly during the isolation or quarantine period; and (3) the notices must state the orders and instructions in force, including a brief explanation of an order’s meaning and effect.
Q: Does the Department of Homeland Security’s (DHS) new public charge rule mean an individual seeking COVID-19 related testing or treatment is a “public charge”?
A: DHS’ final public charge rule expanded the public charge analysis to include most forms of Medicaid in the public charge determination under the Immigration and Nationality Act. In response to the COVID-19 epidemic U.S. Citizenship and Immigration Services (USCIS) released an alert stating that it would not consider “testing, treatment, nor preventative care” that is related to COVID-19, including any available vaccine, in a public charge determination, even if such services and treatments are provided by federally funded Medicaid. USCIS also emphasizes that a public charge determination is based on a totality of the circumstances—meaning that no single factor may be determinative.
In addition to USCIS’ COVID-19 notice, DHS’ final public charge rule contains explicit exclusions. Medicaid used by persons 21 and under and pregnant women (including 60 days after pregnancy) is not included in the public charge determination. DHS’s final public charge rule also exempts certain persons from any public charge determinations, such as refugees, asylees, and VAWA self-petitioners. Finally, it does not apply to current U.S. citizens or legal permanent residents (LPRs) (although it may apply to an LPR who has left the U.S.180 days).
Q: What resources are available in terms of paid sick leave for individuals under quarantine or isolation?
A: Congress passed the Families First Coronavirus Response Act (FFCRA) which requires many employers to give workers 14 days of paid sick leave during a public health emergency, including for specific COVID-19 related reasons, such as being under quarantine or isolation. FFCRA is effective April 2, 2020. Additionally, the Family and Medical Leave Act (FMLA) provides up to 12 weeks of unpaid leave if a covered employee has a serious health condition or if that employee is caring for a family member with a serious health condition. The employee must have worked for an employer for a year and the employer must have 50 or more employees. FFCRA modified FMLA to provide paid leave protections for more employees to address the COVID-19 threat.
Q: What is the authority to require cancelling of all elective cases in preparation for implementing CSC and/or alleviate strain on the hospital systems?
A: Centers for Medicare & Medicaid Services (CMS) issued guidance that all elective surgeries, non-essential medical, surgical, and dental procedures be delayed during the COVID-19 outbreak. In addition, the American College of Surgeons has released Triage Guidance for Non-Emergent Surgical Procedures.
Q: What protections are in place for undocumented persons who might seek treatment for COVID-19?
A: Generally, under guidelines from Immigration and Customs Enforcement (ICE), health care settings are “sensitive zones” in which immigration enforcement actions should not normally be conducted. There are some exceptions. Because there have been highly publicized cases of individuals being detained by immigration agents on their way to seeking care, even where protections are offered, fears and concerns of deportations remain. On March 18, 2020, in response to the COVID-19 ICE announced that it would adjust its enforcement to focus on public safety risks and those subject to mandatory detention on criminal grounds. ICE further stated, “it will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors’ offices, accredited health clinics, and emergent or urgent care facilities, except in the most extraordinary of circumstances.”
Q: What is the authority for a moratorium on eviction cases and what does this mean for the individual municipalities?
A: On March 18, HUD announced a moratorium on evictions and foreclosures on FHA-insured properties. Additionally, many states have issued a moratorium on evictions during the COVID-19 pandemic. These tend to be temporary and may be limited in scope—for example, applying only to evictions based on non-payment of rent. For the most part, these have been issued as Executive Orders by the Governor, such as in Maryland and Kansas.
Q: Are there resources available to assist the homeless population with care and placement issues during these emergency event?
A: CDC and the Department of Housing and Urban Development (HUD) have released guidance and resources related to COVID-19 and people experiencing homeless, including: CDC Resources for Homeless Shelters, CDC Interim Guidance for Homeless Service Providers to Plan and Respond to Coronavirus Disease 2019 (COVID-19), HUD Infectious Disease Kit for Continuum of Care, HUD Specific Considerations for Public Health Authorities to Limit Infection Risk Among People Experiencing Homelessness.
This FAQ was developed by April Shaw, Leila Barraza, Sarah Wetter, and Michelle Notrica.
The Network for Public Health Law provides information and education about laws related to the public’s health. We do not provide legal representation or provide advice on a particular course of action.