Quarantine and Isolation Orders and the Process Owed
Federal quarantine authority is narrow in scope and unusually specific about process. An order must rest on individualized findings, be reassessed by a different official within seventy-two hours, and be open to a medical review the detained person can request.
The rule in short
Federal authority to apprehend, examine, quarantine or isolate an individual rests on regulations under the Public Health Service Act and applies to diseases specified by executive order. An order requires a finding that the individual is reasonably believed to be infected with a quarantinable disease in a qualifying stage and is moving or about to move between states, or is a probable source of infection to such persons. Reassessment by a different official follows within seventy-two hours.
Detaining a person who has committed no offense, on the basis of a medical belief, is the most intrusive power in this field. The federal regulations governing it are correspondingly detailed about process, and they are unusual among emergency provisions in fixing a clock on the government rather than on the person affected. State authority is broader in scope and generally less prescriptive about procedure.
Where the federal power comes from and what bounds it
The statute authorizes regulations necessary to prevent the introduction, transmission or spread of communicable diseases from foreign countries into the states, or from one state or possession into another. It then narrows the detention power sharply: regulations may not provide for the apprehension, detention or conditional release of individuals except for the purpose of preventing the introduction, transmission or spread of such communicable diseases as are specified from time to time in executive orders of the President, on the recommendation of the Secretary in consultation with the Surgeon General.
Two further limits sit in the same section. Regulations providing for apprehension, detention, examination or conditional release apply only to individuals coming into a state or possession from a foreign country or a possession, except as the interstate provision allows. And that interstate provision permits apprehension and examination of an individual reasonably believed to be infected with a communicable disease in a qualifying stage who is moving or about to move from one state to another, or who is a probable source of infection to individuals who will be moving between states while infected. A qualifying stage means a communicable stage, or a precommunicable stage where the disease would be likely to cause a public health emergency if transmitted.
The findings an order must rest on
The regulation implementing that authority requires an individualized basis. The Director may authorize apprehension, medical examination, quarantine, isolation or conditional release of any individual for the purpose of preventing the introduction, transmission and spread of quarantinable communicable diseases as specified by executive order, based on a finding either that the individual is reasonably believed to be infected with such a disease in a qualifying stage and is moving or about to move between states, or that the individual is so infected and constitutes a probable source of infection to other individuals who may be moving between states.
The finding attaches to the individual rather than to a population, which is what separates this power from the closure and gathering restrictions discussed in closure and curfew orders and the challenges to them. The same regulation imposes a positive duty alongside the power: the Director will arrange adequate food and water, appropriate accommodation, appropriate medical treatment and means of necessary communication for individuals apprehended or held in quarantine or isolation.
| Stage | Who acts | Standard applied | Timing |
|---|---|---|---|
| Initial order | The issuing official | Reasonable belief of infection plus the interstate element | At the outset |
| Mandatory reassessment | An official other than the one who issued the order | Whether continuation is needed, and less restrictive alternatives | No later than seventy-two hours after service |
| Written order after reassessment | The reassessing official | Continue, modify or rescind | Promptly at the conclusion |
| Medical review | Arranged on the individual's request | Whether there is a reasonable belief of infection in a qualifying stage | As soon as practicable after a request |
| Notice of review | The Director | Written notice of time and place | Before the review |
Seventy-two hours, and a different official
The most distinctive feature of the federal scheme is a mandatory internal review that the detained person does not have to ask for. The Director, excluding the official who issued the order, must reassess the need to continue the quarantine, isolation or conditional release no later than seventy-two hours after service of the order. The exclusion of the issuing official is repeated in every subsection, which makes clear it is the point of the provision rather than an incidental drafting choice.
The reassessment has prescribed content. It must review all records considered in issuing the order, including travel records and records evidencing exposure or infection, as well as any relevant new information. Where applicable, it must consider and determine whether less restrictive alternatives would adequately serve to protect the public health. At its conclusion the official must promptly issue and serve a written order directing that the measure be continued, modified or rescinded, and where it is continued or modified the order must explain the process for requesting a medical review.
Service is ordinarily on the individual, with a limited alternative: the order may be served by publication or by posting in a conspicuous location where it applies to a group and individual service would be impracticable.
The medical review is arranged as soon as practicable on request, but only after the mandatory reassessment and following service of an order continuing or modifying the measure. Its stated purpose is to ascertain whether the Director has a reasonable belief that the individual is infected with a quarantinable communicable disease in a qualifying stage. It is therefore a review of the basis for the order rather than an independent adjudication of the person's health, and the notice of its time and place comes in writing.
State authority, broader and less specified
State powers are not confined to interstate movement and are not limited to a federal disease list. California requires each health officer who knows or has reason to believe that a reportable disease or any other contagious, infectious or communicable disease exists or has recently existed within their jurisdiction to take such measures as may be necessary to prevent the spread of the disease or the occurrence of additional cases. Florida places responsibility for declaring public health emergencies and for ordering isolation or quarantine in the State Health Officer, defining isolation as the separation of an individual reasonably believed to be infected from those who are not, and providing that individuals unable or unwilling to be examined, tested or treated for reasons of health, religion or conscience may be subjected to isolation or quarantine.
The federal statute does not displace those powers. Nothing in the relevant sections or their regulations supersedes state law, including provisions established by political subdivisions, except to the extent a provision conflicts with an exercise of federal authority. That leaves overlapping authority as the ordinary condition, an overlap examined in where federal and state emergency authority meet, and it means the process a detained person is owed can depend on which government issued the order. The declarations that activate the state versions of these powers are described in declaring an emergency and what it unlocks.
Points to carry away
- The federal power reaches only communicable diseases specified from time to time in executive orders.
- An order must rest on a finding of reasonable belief of infection in a qualifying stage plus an interstate movement element.
- The agency must arrange food, water, accommodation, medical treatment and means of communication for those detained.
- A different official must reassess the need to continue the order no later than seventy-two hours after service.
- The reassessment must consider whether less restrictive alternatives would adequately protect public health.
- A detained individual may request a medical review after the mandatory reassessment.
Questions readers ask
Which diseases can support a federal order?
Only those specified from time to time in executive orders of the President, on the recommendation of the Secretary in consultation with the Surgeon General. The current list covers cholera, diphtheria, infectious tuberculosis, measles, plague, smallpox, yellow fever and viral hemorrhagic fevers; severe acute respiratory syndromes associated with fever and signs of pneumonia or other respiratory illness that are transmissible between people and either are causing or have the potential to cause a pandemic, or are highly likely to cause mortality or serious morbidity if not controlled; and influenza caused by novel or reemergent viruses with pandemic potential.
What does the interstate element require?
The regulations permit apprehension, examination, quarantine, isolation or conditional release based on a finding either that the individual is reasonably believed to be infected with a quarantinable communicable disease in a qualifying stage and is moving or about to move from one state into another, or that the individual is so infected and constitutes a probable source of infection to other individuals who may be moving between states. A qualifying stage means the disease is communicable, or is precommunicable if it would be likely to cause a public health emergency if transmitted.
Does federal authority displace a state's?
The statute says it does not, except on conflict. Nothing in the relevant sections or the regulations under them may be construed as superseding any provision of state law, including regulations and provisions established by political subdivisions, except to the extent that the provision conflicts with an exercise of federal authority under those sections. The ordinary position is therefore concurrent authority, with state and local health officers exercising their own powers alongside the federal ones rather than in place of them.
Sources
- 42 U.S.C. 264 — Regulations to control communicable diseasesThe statutory authority, the limits on apprehension and detention, the qualifying stage definition and the preemption clause.
- 42 CFR 70.6 — Apprehension and detention of persons with quarantinable communicable diseasesSets the two findings supporting an order and the duty to arrange food, accommodation, treatment and communication.
- 42 CFR 70.15 — Mandatory reassessmentRequires reassessment by a different official within seventy-two hours, consideration of less restrictive alternatives and a written order.
- 42 CFR 70.16 — Medical review of a Federal orderProvides for a medical review on request after the mandatory reassessment and fixes its purpose and notice requirements.
- Florida Statutes section 381.00315Places isolation and quarantine authority in the State Health Officer and defines isolation and quarantine.
- California Health and Safety Code section 120175Requires a local health officer to take measures necessary to prevent the spread of a communicable disease.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Emergency Orders
Challenging an Order While the Emergency Continues
A challenge to an operative emergency order begins with an application for interim relief. An order granting, continuing, modifying, refusing or dissolving an injunction is immediately appealable, so a ruling either way can be taken up at once. A party seeking a stay ordinarily moves first in the district court. Governments argue for deference on a thin record; challengers argue that urgency does not lower the standard of justification.
When an Expired Order Can Still Be Reviewed
The judicial power extends to cases and controversies, so a challenge to an order that no longer operates ordinarily ends. Two exceptions matter here. The first covers disputes capable of repetition yet evading review, which requires that the challenged action be too short in duration to be fully litigated and that there be a reasonable expectation the same party will face it again. The second addresses voluntary cessation by the party whose conduct is challenged.
Closure and Curfew Orders and the Challenges to Them
Emergency closure and curfew orders draw lines between categories of activity, and litigation over them concentrates on those lines. Governments defend the classifications as public health judgments entitled to deference. Challengers argue that where an order burdens an enumerated right, deference does not apply and the government must justify treating comparable activity differently. Courts have split on both the standard and on which activities are comparable.