Coronavirus: Can Georgia Government Officials Order An Individual Quarantined for Public Health Reasons?

At the end of February 2020, Georgia Governor Brian Kemp issued an executive order establishing a Coronavirus Task Force, comprised of subject-matter experts from the private and public sectors, to assess Georgia’s procedures for preventing, identifying, and addressing cases of the coronavirus (COVID-19).

A few days later, in early March 2020, Governor Kemp confirmed that there were two confirmed cases of COVID-19 in Fulton County, Georgia. These cases involve two individuals who reside in the same household, one of which recently returned from Italy. In a press conference held on March 9, 2020, Governor Kemp stated there were six confirmed cases of COVID-19, with confirmatory testing pending on seven presumptive positive cases.

The first two individuals diagnosed with COVID-19 and two members of their household are submitting to self-isolation and voluntary quarantine, as well as one other diagnosed individual who also recently traveled to Italy. The other individuals with confirmed cases are hospitalized. Assuming that not all persons would agree to social distancing and self-separation from society, this raises the questions of under what circumstances may a government official under Georgia law require an individual to be quarantined, and what due process protections are in place?[1]

If infected persons refuse to self-quarantine, there is a process in Georgia to force them into isolation. Georgia law delegates general authority to order quarantines to the Georgia Department of Public Health (“DPH”) and all county boards of health and/or, in the event of a “public health emergency,” to the Governor.

Department of Public Health:

O.C.G.A. § 31-2A-4(4) provides that the DPH may “[i]solate and treat persons afflicted with a communicable disease … for the suppression of such disease and to establish … complete or modified quarantine, surveillance, or isolation of persons … exposed to a disease communicable to man.” Additionally, Rule 511-9-1-.03(2) of the Rules and Regulation of the State of Georgia provides that the DPH may “[i]solate persons infected with communicable diseases or conditions likely to endanger the health of others, until they are found to be free of the infectious agent or disease” and “[q]uarantine persons exposed to, or reasonably suspected of having been exposed to, a communicable disease, until they are found to be free of the infectious agent or disease.”

County Boards of Health:

O.C.G.A. § 31-12-4 provides that “the [DPH] and all county boards of health may … require quarantine or surveillance of carriers of disease and persons exposed to, or suspected of being infected with, infectious disease until they are found to be free of the infectious agent or disease in question.” Additionally, Rule 511-9-1-.04(2) of the Rules and Regulation of the State of Georgia provides that the District Health Directors of county boards of health may “[i]solate suspected infected persons with communicable disease or conditions likely to endanger the health of others until they are free of the infectious agent or diseases.”

Further, under Rule 511-9-1-.05(1) of the Rules and Regulations of the State of Georgia, District Health Directors, in consultation with the Commissioner of DPH, may issue orders for isolation or quarantine in writing, or orally when delay would pose a serious imminent danger to public health. Orders for isolation or quarantine shall include the following:

Name and address of person or description of group subject to the order.
Clinical grounds for believing the individual or group is infected with, or may have been exposed to, a communicable disease.
Location where the individual or group will be confined during the period of isolation or quarantine.
Exact date and time when the period of isolation or quarantine will expire, or the conditions or circumstances under which the individual or group would no longer pose a threat to the public health and confinement would end.
Conditions under which the individual or group will be isolated or quarantined.
Notice of right to challenge the isolation or quarantine.

According to Rule 511-9-1-.05(2) of the Rules and Regulations of the State of Georgia, isolation and quarantine orders not issued during a public health emergency may be appealed to the DPH in accordance with O.C.G.A. § 31-5-3(a).

Governor –Declaration of Public Health Emergency:

O.C.G.A. § 38-3-51(a) provides: “In the event of … a public health emergency, within or affecting this state or against the United States, the Governor may declare that a state of emergency … exists.” Following such a declaration, the Governor has an assortment of emergency powers. O.C.G.A. § 38-3-51; see also O.C.G.A. § 38-3-22. Though O.C.G.A. § 38-3-51 does not expressly authorize the Governor to order quarantines, it does provide to the Governor the ability “[t]o perform and exercise such other functions, powers, and duties as may be deemed necessary to promote and secure the safety and protection of the civilian population.” O.C.G.A. § 38-3-51(c)(4).

If the Governor makes a declaration of public health emergency, he may then “direct the [DPH] to coordinate all matters pertaining to the response of the state to a public health emergency.” O.C.G.A. § 38-3-51(i)(1). In such event, the Commissioner of the DPH or his designee could issue an order of quarantine.[2] Further, by specifically providing for the “due process procedures … applicable to any quarantine … program instituted pursuant to a declaration of a public health emergency,” the statue contemplates the ability of the Governor or his designee to order quarantines. Id. at (i)(2).

Anyone violating a rule, regulation or order under O.C.G.A. §§ 38-3-1, et seq., is guilty of a misdemeanor. O.C.G.A. § 38-3-7. Likewise, if a person violates an order of the DPH or county board of health, the DPH or county board of health can seek injunctive relief in any court of competent jurisdiction and the violation of that order would be punishable as for contempt of court. O.C.G.A. § 31-5-9.

Due Process Protections:

For quarantine orders by the Governor or his designees following an emergency declaration by the Governor, specific due process procedures and protections are established to allow the recipient of a quarantine order the opportunity to challenge the order by appeal, however the order is not stayed during the pendency of the appeal. Those due process protections include the following:

Jurisdiction/Venue: “An individual or a class may challenge the [quarantine order instituted pursuant to a public health emergency] before any available judge of the superior courts in the county where the individual or a member of the class resides or in Fulton County. Such judge, upon attestation of the exigency of the circumstances, may proceed ex parte with respect to the state or may appoint counsel to represent the interests of the state or other unrepresented parties.” O.C.G.A. § 38-3-51(i)(2)(C).
Hearing: “An order imposing a quarantine … may be appealed but shall not be stayed during the pendency of the challenge. The burden of proof shall be on the state to demonstrate that there exists a substantial risk of exposing other persons to imminent danger. … With respect to quarantine, the state’s burden of proof shall be met by a preponderance of the evidence.” O.C.G.A. § 38-3-51(i)(2)(B).
Counsel: “Consonant with maintenance of appropriate quarantine rules, the department shall permit access to counsel in person or by such other means as practicable that do not threaten the integrity of the quarantine.” O.C.G.A. § 38-3-51(i)(2)(A).
Conduct of Hearing: “The judge hearing the matter may consolidate a multiplicity of cases or, on the motion of a party or of the court, proceed to determine the interests of a class or classes. The rules of evidence applicable to civil cases shall be applied to the fullest extent practicable taking into account the circumstances of the emergency. All parties shall have the right to subpoena and cross-examine witnesses, but in enforcement of its subpoena powers the court shall take into account the circumstances of the emergency. All proceedings shall be transcribed to the extent practicable.” C.G.A. § 38-3-51(i)(2)(C).
Remedies: “The judge hearing the matter may enter an appropriate order upholding or suspending the quarantine … order. … With respect to quarantines, the order shall be automatically stayed for 48 hours.” O.C.G.A. § 38-3-51(i)(2)(D). Either party may immediately appeal the order of the judge to the Georgia Supreme Court on an expedited basis. Id. at (i)(2)(E).
Costs: “Filing fees [in the superior court] shall be waived and all costs borne by the state.” O.C.G.A. 38-3-51(i)(2)(C). “Filing fees for appeal [to the Supreme Court] shall be waived, all costs shall be borne by the state, and such appeals shall be heard expeditiously.” O.C.G.A. § 38-3-51(i)(2)(E).

An order for isolation or quarantine issued when there has been no declaration of public health emergency by the Governor would be challengeable under the normal procedures for contested cases under the Georgia Administrative Procedure Act. O.C.G.A. § 31-5-2. Rule 31 of the Administrative Rules of Procedure provide for emergency and expedited proceedings upon motion of either party when the Administrative Law Judge determines that the circumstances require, in the interest of public health and safety, that an expedited hearing be held.

In addition to the above procedures for challenging an isolation or quarantine order, there is the additional prospect of an individual petitioning for a writ of habeas corpus. Georgia law does not specifically address the circumstances in which an individual may petition for a writ of habeas corpus in the public health context. However, Georgia law generally provides that “[a]ny person restrained of his liberty under any pretext whatsoever, except under sentence of a state court of record, may seek a writ of habeas corpus to inquire into the legality of the restraint.” O.C.G.A. § 9-14-1(a). Habeas relief is available when the petitioner is either in physical custody or when there are “significant restraints” on the petitioner’s liberty apart from physical custody. See Farris v. Slanton, 262 Ga. 713 (1993). The use of habeas corpus to challenge quarantine has been recognized. See In re Halko, 246 Cal. App. 2d 553, 558 (Cal. Ct. App. 1966) (“a person quarantined without reasonable grounds is entitled to relief by habeas corpus”).

Conclusion:

As shown above, Georgia has broad legal authorities to implement quarantines for public health reasons, with or without a declaration of emergency. And, such social distancing measures can be issued by the DPH, local boards of health, or the Governor, depending on the authority relied upon.

[1] During the March 9, 2020 press conference, Governor Kemp also acknowledged that 34 passengers from the Grand Princess cruise ship, who are Georgia residents, will be isolated in their homes and monitored by State officials. Governor Kemp also announced that other passengers from the ship, who are residents of other states, will be quarantined at Dobbins Air Force Base in Cobb County, Georgia. It was not clarified whether these passengers are voluntarily submitting to such isolation and quarantine measures.

[2] Furthermore, as already noted, the authority of the DPH and/or local county boards of health to issue isolation and/or quarantine orders is established by O.C.G.A. § 31-12-4, with or without a declaration of emergency.