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Emergency Powers in Massachusetts: COVID-19

Emergency Powers in Massachusetts: COVID-19

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Executive Powers in Massachusetts During a State of Emergency Declaration

Under a state of emergency, the governor of Massachusetts has the authority to issue executive orders, which must be treated as law and may override existing law for the course of the disaster. These could include, but are not limited to: canceling large events, rapidly deploying the use of state resources with executive authority, ordering lockdowns or closures for businesses, and in extreme cases, quarantine for the entire state.

The emergency powers effectively give the governor the control and flexibility to facilitate and expedite the use of the state’s resources, as well as the deployment of federal and interstate measures, to protect the Commonwealth during a crisis.

Is it Illegal to Violate an Executive Order to Shelter in Place?

Massachusetts law allows our governor to order a shelter in place.  In fact, the law is codified in section 8 chapter 639 of the acts of 1950 (MEMA Law).  A violation of such an executive order can lead to a fine of up to $500 and up to one year in jail.  Therefore, you should follow the governor’s lawful orders to shelter in place, and read the actual order for yourself.  There are exceptions to the order, including medical personnel, emergency responders and several other “essential services.”

That said, if you or a loved one is accused of violating the executive order and charged with a crime, call us at 781-797-0555 today for a free telephone consultation.

The Difference Between Isolation & Quarantine 

Isolation refers to separating people who are ill from those who are healthy to prevent the spread of a communicable disease. Isolation is defined in the Massachusetts Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements (105 Code of Massachusetts Regulations [CMR] 300.000) as follows:  “Separation, for the period of communicability, of infected persons from others in such places and under such conditions as will prevent the direct or indirect transmission of an infectious agent to susceptible people or to those who may spread the agent to others.  This applies also to animals.”

Quarantine refers to separating and restricting the movement of people who have been exposed to a communicable disease and are not yet sick—these people are often referred to as “contacts” of the person who is known or presumed to be infected and at risk of spreading the infection. This could include animals who have been exposed and are at risk. Quarantine is defined in the Massachusetts Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements (105 CMR 300.000) as follows:  “Restricting the freedom of movement of well persons or domestic animals who have been exposed to a communicable disease for a period of time related to the usual incubation period of the disease, in order to prevent effective contact with those not so exposed.”

What laws govern isolation and quarantine?

Public health agencies at the federal, state, and local levels are responsible for protecting the health of the people.  These agencies have legal and regulatory authority to control the spread of the disease as effectively and efficiently as possible. They do this by defining dangerous diseases, investigating disease outbreaks, and if necessary, isolating and quarantining people and animals.

Listed below is a partial list of Massachusetts laws and regulations that pertain to isolation and quarantine.  A more thorough and complete list is available from the Massachusetts Department of Public Health (MDPH), Division of Epidemiology and Immunization.  You can call (617) 983-6800 to request a copy or go the MDPH website at: www.mass.gov/dph/epi and click on Reportable Communicable Diseases.

Massachusetts General Law (M.G.L):

Chapter 111: Public Health

  • Section 6: Power to define diseases deemed dangerous to public health; control and

prevention

  • Section 7: Investigation of contagious or infectious diseases; notice
  • Section 95: Powers and duties of local boards of health in cases of disease dangerous to the public health
  • Section 96: Warrants to remove persons infected with dangerous disease
  • Section 97: Removal of patient from home where patient cannot be isolated
  • Section 104: Board of health must use care to prevent spread of dangerous disease and may give public notice of infected places
  • Section 111: Reporting of dangerous diseases to local boards of health

Chapter 111D (Clinical Laboratories)

Section 6: Reports to MDPH by clinical laboratories of

infectious disease found in examination of specimens

Massachusetts Regulations  

105 CMR 300.000:  Reportable Diseases, Surveillance, and Isolation and Quarantine Requirements

 

_____________________________________________________________________________________

 

FAQ

 

When are isolation and quarantine used?

For certain highly contagious and communicable diseases, isolation and quarantine are used routinely in Massachusetts.

Certain infectious diseases that are not transmitted person-to-person, such as tetanus or Lyme disease, have no need for isolation and quarantine requirements.  There are laws and regulations in place to define diseases as dangerous to the public health. These definitions establish reporting requirements, as well as isolation and quarantine requirements.  Isolation and quarantine are usually initiated by those who are responsible for protecting the public health, including health care providers, public health nurses, health directors, school nurses, emergency medical technicians, etc.

Is isolation and quarantine voluntary?

Isolation and quarantine are usually voluntary, as most people are serious in understanding the need for these measures.  However, in some cases, people who are sick with the contagious condition and people who have been exposed to those conditions may be legally compelled into isolation or quarantine if they refuse to do so on their own.

Who actually issues the isolation and/or quarantine order?

In Massachusetts, the Commissioner of Public Health, local boards of health, local health directors and even the governor are examples of those who may issue isolation and/or quarantine orders.  The order is based on thoroughly researched protocols for controlling the spread of infection to the masses.  Public health nurses and other local health representatives provide isolation and quarantine guidance routinely in their work involving communicable diseases in restaurant employees, daycare staff, schools, health care workers, and other groups.  A court order may be necessary if individuals refuse to comply voluntarily with isolation and quarantine.  Your town’s attorney and MDPH legal counsel should be able to provide assistance as to required paperwork and the process for obtaining a court order.

Who is responsible for enforcement? 

The local board of health, in efforts with other local authorities, is responsible for enforcing isolation and quarantine.  Unless there is a local ordinance or regulation governing isolation and quarantine, local boards of health use the procedures specified in the MDPH regulations, found at 105 CMR 300.210.  Local health officials often develop relationships and formal agreements with law enforcement, courts, hospitals, schools and emergency medical services regarding the order and enforcement of isolation and quarantine.  The MDPH has authority to coordinate with local boards of health and is available to provide assistance or consultation when needed.

Who can answer local board of health legal questions?

The town attorney or city solicitor is a helpful resource to answer legal questions about isolation and quarantine.

How long does isolation and quarantine last?

It really depends on the disease and how contagious and/or deadly it is.  The time frame for isolation of the sick individual is usually defined in relation to the period of time a disease can be contagious and infect others who come in contact with them. Time frames for quarantine are usually defined in relation to the incubation period of a contagious disease—that is, the contact would be quarantined until it is clear that he or she is not developing the disease and becoming infectious.

Minimum periods of isolation and quarantine for reportable diseases are listed in 105 CMR 300.200.

What happens if someone refuses to comply with isolation or quarantine?

Anyone who refuses to willingly comply with isolation or quarantine directives may be subject to a written isolation or quarantine order issued by the board of health or MDPH.  If the person continues refusal of complying with the order, and poses a serious, imminent danger to the public health, the town attorney and/or MDPH attorney should be contacted to discuss whether the person in question should be taken into custody immediately and isolated or quarantined.  If the person refuses to comply with the written order but does not pose a serious, imminent danger to the public health, the local board of health and/or MDPH may seek a Superior Court order to isolate or quarantine the person.

Is there legal protection for a health agent from being sued by a person forced into isolation or quarantine?

The Massachusetts Tort Claims Act, M.G.L. c. 258, protects government employees from personal liability for negligent acts they commit, so long as they were acting within the scope of their jobs.  In a lawsuit with these circumstances, the public employee would be represented by the attorney for the public employer (i.e., the Attorney General’s office in the case of a state employee, or the city solicitor/town counsel in the case of a municipal employee).  Liability is very unlikely to be found if the employee acted reasonably and according to specified procedures.  If liability for negligence were found, the public employer and not the employee would pay any damages.

Should a person refusing to comply with an isolation and/or quarantine order be represented by an attorney in court?

It is best if an attorney represents the person in question, although at the stage of obtaining a temporary restraining order (TRO) in cases of disease other than Tuberculosis, the local board of health and MDPH may proceed on their own (ex parte) if necessary.  At the stage of the preliminary injunction hearing, 10 days after the TRO, the person must be represented by an attorney.

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