The city's contact tracing program for COVID-19, overseen by NYC Health and Hospitals is now under way. By early June, 1,700 tracers will have been hired to work backwards to pinpoint exactly how someone became infected with the virus and identify others who may have been exposed. New Yorkers who test positive at a contract tracing site will be asked to voluntarily self-isolate at home. But if they refuse, or if they cannot because of their living situation, the city will place them under mandatory quarantine.
Like any known disease with no cure or accepted treatment, mandatory self-isolation is among the greatest tools at the disposal of health agencies that look to contain the spread efficiently. Over the years, the use of forced isolation has prompted questions, and sparked court cases on whether it's legal for local, state, and federal governments to impose such a strict order.
Under Section 11.23 of the city Health Code—regulated by the independent Board of Health—the New York City Department of Health and Mental Hygiene is the sole authority that can force sick people into quarantine if an illness proves to be communicable and cause even more New Yorkers to get sick if left untreated. In the case of COVID-19, quarantine is warranted since it "may pose an imminent and significant threat to the public health resulting in severe morbidity and mortality," as DOHMH commissioner Dr. Oxiris Barbot stated in her order calling for a quarantine dated April 19th. Those ordered to quarantine must fill out a form abiding by the rules. A violation of the Health Code is classified as a misdemeanor.
The question of personal freedom over public safety in cases of health crises stretches as far back as 1901 with Jacobson vs. the Commonwealth of Massachusetts, a case involving mandatory vaccinations during a smallpox outbreak, where the U.S. Supreme Court established a government's right to "police powers" to ward off the spread of an infection.
"The so-called 'police power' is very powerful. It doesn't permit people to be locked up at random. But if there's a good reason, in particular a public health reason to quarantine someone and to impose limitations on their, sort of, travel, their exposure to others, then there's no question that the state has the authority to do it," said James Cohen, a professor at Fordham Law School. "There are certain limits to the police power and those limits can arise from the nature of the need."
Cohen added, "There are limits to the condition in which they can be locked away, but there's no limit as a practical matter to the state's right to lock them away as long as they have a pressing, in this case, a public health need," said Cohen.
According to the city's health code, the Department of Health can place someone under mandatory quarantine if they have "clear and convincing evidence that the health of others is or may be endangered by a case."
On Tuesday, the city said that New Yorkers who don't have their own bathrooms and who test positive for COVID-19 would be asked to isolate in a hotel room provided by the city. The city has already reserved 1,200 hotel rooms ready to go online by June 1st, with several thousand more in operation in the coming months.
Beyond that, officials have not made clear what specific factors would trigger the city to bring someone into isolation.
"What are the realities faced by New Yorkers that are preventing them from doing what they would want to do and bringing all of the resources we have to bear as a city, as a healthcare organization to make this a possibility for them and sustain them during this time-limited period that is going to enable us to reopen the city and have them get back to their families and their communities?" Dr. Amanda Johnson, the director of isolation for the Test and Trace Corp, told reporters on Wednesday. "You tell us what you need to make the right choice. I want to take on that responsibility for making that work for you."
Dr. Mitchell Katz, NYC Health and Hospitals CEO, predicted 99 percent compliance with the city's self-isolation orders, and has framed the accommodations as a kind of "carrot-and-stick" method to containment. In testimony before the New York City Council's Health and Hospitals Committee hearing earlier this month, Katz warned that the program can use the quarantine option if it must.
"It's not nice to be away from your home and your family, but the state has the power to do it under confined circumstances," said Cohen.
Katz did emphasize that food, medicine, laundry services, and social workers will be available to those entering quarantine. Those quarantined but worried about losing their job have been offered greater job protections by the state, with employers mandated to provide paid/unpaid leave benefits.
A person can still sue the state under actual malice, gross negligence, or willful misconduct if they believe quarantine was not needed, according to David Lesch, a trial attorney who doubles as the host of "Today's Verdict" on BronxNet Television.
This can become problematic if DOHMH confines a certain segment of the population more so than others.
"If it turns out that the state, the federal government is not doing this in a proportionate way, that it’s impacting one particular community, I believe you can take action under a 1983 civil rights violation," said Lesch.
A case involving a questionable quarantine order happened six years ago in New Jersey involving Kaci Hickox. Hickox, a registered nurse, had landed at Newark International Airport after traveling to Sierra Leone, where an Ebola outbreak in that country infiltrated New York City. She was ultimately placed into a 21-day quarantine at her home in Maine after returning with a fever that read inconsistently. The quarantine restricted her movement, and she was kept from attending public gatherings.
Hickox sued the Maine's health department and won after a judge said authorities failed to provide convincing evidence that the restrictions on Hickox's freedom were needed to ward off the spread of the disease. Hickox also sued New Jersey—under then Governor Chris Christie—for violating her Fourth and Fourteenth Amendment rights. She eventually settled her case, and the state updated its legal provisions to allow those ordered to go into quarantine to seek legal counsel.
Lesch, who's been practicing law for 31 years in the Bronx, suspects these types of cases may surface in the coming months.
The contract tracing program in New York City will continue ramping up over the next few months, as the city plans to open a total of 35 coronavirus testing sites capable of conducting 50,000 total tests per day come August.
