Ensuring Compliance With Quarantine by Undocumented Immigrants and Other Vulnerable Groups: Public Health Versus Politics

Abstract

A successful quarantine requires a high rate of compliance by individuals with potential exposure to a communicable disease.

Many individuals would be reluctant to comply with a quarantine because they fear that contact with government officials will place them in legal, personal, or economic jeopardy. These include undocumented immigrants and individuals with a substance use disorder. For a quarantine to succeed, individuals must be granted temporary immunity from arrest, deportation, or similar adverse consequences, but doing so will be politically unpopular.

We argue that public health considerations must take precedence over politics in protecting the health of the public.

Quarantine, the restriction of movement of asymptomatic persons with possible exposure to a communicable disease during its period of communicability, is one of the oldest public health responses to disease outbreaks.¹ The role of quarantine has been limited considerably by modern public health prevention and treatment measures, including immunization, antibiotic and antiviral medications, respirators, and supportive therapy.² Nevertheless, social-distancing measures such as quarantine may still play a role in containing some contagious diseases, especially those caused by newly emerging pathogens for which no vaccine or cure exists.³ Isolation, the restriction of movement of symptomatic individuals, is politically less contentious than quarantine because the risk of transmissibility is clear and because symptomatic individuals will usually seek treatment and accept confinement in hospitals or other facilities.¹

Quarantine exemplifies the quintessential ethical challenge of public health because it involves balancing the interest of the population in avoiding exposure to virulent diseases and respecting the right of asymptomatic individuals (most of whom are not infected) to be free from governmentally imposed restrictions of their liberty.¹ Consequently, quarantine has an unavoidable political component.⁴ In the United States, the federal government’s role is limited to international and interstate quarantine, consultation, and technical assistance,⁵ thereby leaving the states responsible for most quarantine activities.¹ The authority of state officials, including governors and public health officers, to order individuals into quarantine derives from state legislation within parameters set by federal and state constitutional provisions, including substantive and procedural due process.² State laws also specify the criteria used to determine whether a quarantine may be ordered, the procedures for enforcement of quarantine, and the legal procedures by which individuals may challenge their confinement in court.

Government officials enact the laws and promulgate the regulations pertaining to public health. However, if partisan or ideology-based political considerations are permitted to outweigh public health science, the credibility of public health actions will be undermined; this could lead to widespread public noncompliance. This would be especially problematic for quarantine, because quarantine reaches its peak of effectiveness at 90% compliance.⁶ For such a high percentage of asymptomatic individuals to accept a substantial limitation of their liberty for the public good, it is essential that the quarantine be indispensable, transparent, fairly applied, and reasonable in operation and that all people have unwavering trust in the professional competence and apolitical motivation of public health officials.

Regardless of the bona fides of public health officials, some individuals subject to a quarantine would be especially reluctant to comply. Remaining at home under government supervision or entering a public facility would be inconceivable for numerous people who live in the shadows, fearful that contact with any government official will result in their arrest, deportation, or other highly undesirable outcome. Yet, if fear “drives them underground,” their refusal to comply with a group-based or individual quarantine would threaten the spread of disease and endanger the health of the entire population.

In this essay, we consider the previously underexplored issue of whether the exigent circumstances of a public health emergency justify extraordinary measures to assure all individuals that they may comply with a quarantine without risking legal, personal, or economic jeopardy. Measures to promote compliance with quarantine are especially important when the quarantine involves a substantial number of individuals. We also consider the need for legislation to prohibit discrimination in employment against individuals who enter quarantine and to provide income support for individuals during their time in quarantine.

We do not address criteria to determine whether quarantine is appropriate in particular instances or the myriad logistical challenges of quarantine, including supplying food and medicine, providing shelter for transients and homeless people, and arranging for the care of dependent children and pets. We also do not address the important issue of whether the extraordinary measures and protections would apply only to legally ordered quarantine or more broadly to all quarantine. These are matters for the legislative process.

LEGAL JEOPARDY

Hidden populations, such as unauthorized immigrants and criminal offenders, may fear that cooperating with public health officials will lead to arrest or deportation. Therefore, the risk of exposing their lack of citizenship or criminal status may result in their unwillingness to comply with a government-ordered or voluntary quarantine.

Unauthorized Immigrants

The Pew Center for Research estimates that 10.7 million unauthorized immigrants are living in the United States.⁷ Although most undocumented immigrants enter the country without authorization, an increasing number of individuals enter the United States legally each year but overstay their visas, thereby changing their status to unauthorized. The Department of Homeland Security estimates that as of 2017 more than 701 900 individuals with expired visas remained in the United States.⁸

Approximately 8% (4.1 million) of children in kindergarten through 12th grade live in households in which 1 or both parents are undocumented.⁷ Immigration and Customs Enforcement (ICE) has a sensitive locations policy,⁹ whereby it generally avoids enforcement actions in certain sensitive situations, but many unauthorized parents and children lack trust in the immigration system. They may experience such stress or fear about separation from their families that they even decline to receive necessary medical care.¹⁰ Many fear that if they cooperate with any emergency measures public health officials will learn their citizenship status and report them to local police or ICE.¹¹

Another complicating factor is that undocumented immigrants are excluded from public insurance programs, such as Medicaid, as well as subsidies under the Patient Protection and Affordable Care Act.¹² They may avoid applying for private insurance coverage because of the “perceived or actual need to show documentation of immigration status.”^13(p246) An estimated 42% of adults and 25% of children who are undocumented are also uninsured.¹⁴ These barriers to obtaining affordable health coverage exacerbate existing health disparities in this vulnerable population. This, in turn, may worsen public health outcomes in an epidemic unless their unique needs are considered when formulating public health policy.

Unauthorized immigrants are also prevalent in the US labor force. They constitute approximately 4.8% of the total US workforce,⁷ mainly working in low hourly wage jobs that lack benefits such as sick pay and job security. Furthermore, unauthorized immigrants comprise nearly one fourth of the total US workforce in agriculture⁷ and home health care.¹⁵

Criminal Offenders

Criminal offenders, specifically fugitives, are “an important yet underappreciated aspect of law enforcement and policy-making across the nation.”^16(p327) The number of individuals who have committed a crime but have not been charged is unknown. Even the number of fugitives residing in the United States is difficult to pinpoint because arrest warrants may be issued for minor offenses, such as a failure to appear for a traffic violation, or for more serious matters, such as when criminal suspects are on the run. Other individuals may be delinquent in child support payments or owe fines to the government. One study estimates that 2 million criminal warrants may be active at any time.¹⁶ In 2018, the US Marshals Service arrested 86 703 fugitives, which includes, but is not limited to, state and local fugitives, federal fugitives, sex offenders, gang members, homicide suspects, international and foreign fugitives, and organized crime fugitives.¹⁷

In addition, some soldiers who are absent without leave or with unauthorized absence (AWOL/UA) also are subject to criminal investigation. As of 2018, each military branch must compile monthly reports of nondeployable soldiers,¹⁸ but the statistics are considered undercounted because after being AWOL/UA for 30 days, a soldier’s status may change to dropped from rolls or another status, excluding them from the AWOL/UA reports. The total number of soldiers who are AWOL/UA is likely in excess of 50 000.¹⁹

Public health planning must balance public safety and law enforcement with the need for compliance in a public health emergency. In considering whether public health goals justify temporary immunity from arrest during a public health emergency, officials should also consider the broader issues of “the spread of infections into jails from surrounding communities, and equally important, from jails into communities,” in part from the high turnover of inmate populations.^20(pS339)

PERSONAL JEOPARDY

According to the Substance Abuse and Mental Health Services Administration, approximately 20.2 million adults aged 18 years or older had a substance use disorder.²¹ In order of prevalence, this includes alcohol, illicit drug, marijuana, prescription pain reliever, and cocaine and heroin use disorders. Although substance abuse is pervasive, only 2.5 million adults enter treatment, reportedly because they are not ready to stop using alcohol or illicit drugs, they have no health care coverage, or they cannot find available treatment or afford the costs.²¹ Individuals with substance use disorders are very unlikely to enter a controlled atmosphere, including quarantine at home or in a public facility. It is unimaginable that any US government agency will supply illicit substances to individuals in quarantine, and thus the only conceivable way of inducing these individuals to comply with quarantine is to provide medical treatment of substance use disorders. Without such measures, high rates of noncompliance in this population will undermine the possible benefits of a quarantine.

Another vulnerable group includes homeless youths. One study showed that 6% to 7% of all youths—or more than 1.5 million children and adolescents—run away from home each year.²² Here, too, the precise number is unknown because the youths are transient and the population overlaps significantly with other vulnerabilities,²³ such as substance abuse. Youths in this population have usually experienced significant family conflict or instability attributable to physical, sexual, verbal, or other abuse from a family member because of the youth’s sexual orientation, sexual activity or pregnancy, alcohol or drug abuse, behavioral or academic problems, or economic issues in the home.²³ On the streets, deprived of adequate housing, food, and protection, these homeless youths may become involved in other dangerous activities.²⁴

The Runaway Youth Act of 1974²⁵ decriminalized runaway youths and authorized funding for services, such as shelter and counseling. This and related legislation have created a range of programs, including transitional housing, education, employment, and a safe communication system. When formulating policy for this population in the event of a public health emergency, measures need to be adopted to preserve the confidentiality of these youths and ensure that they are safe, receive appropriate medical care, and are aware of existing support services. Homeless youths often shun government-run shelters and assistance to avoid being located and returned to their homes; they remain at an increased risk of homelessness, particularly if they believe they may be turned over to the police or a parent.²⁶

ECONOMIC JEOPARDY

Many individuals in the United States have a tenuous employment status, with no employment security and a realistic fear of losing their job if they fail to show up for work, regardless of the reason. Without protection against discharge because of absence and the need to maintain their income, many employees would feel compelled to go to work despite a quarantine order.²⁷

Under current US law, employees without a contrary contractual provision (a large majority of US employees) may be discharged for absence from work for virtually any reason, including compliance with a quarantine.²⁸ Irrational fear of contagion also might result in discharge. A case that arose in the fall of 2014, at the height of the Ebola outbreak, involved a woman in Florida who was fired from her job because she was traveling to Ghana to visit her sister. Her employer feared she would become infected with Ebola and bring it home and infect co-workers and customers. A US district court in Florida held that the woman was not covered under the Americans with Disabilities Act (ADA), specifically declining to construe the ADA as being applicable where “an employer perceives an employee to be presently healthy with only the potential to be disabled in the future due to voluntary conduct.”²⁹

If similar reasoning was applied in a case involving adverse treatment of an asymptomatic individual in voluntary or government-ordered quarantine, the court would probably conclude that the individual was not protected by the ADA. Also, the federal Family and Medical Leave Act, which grants qualifying employees the right to take up to 12 weeks of unpaid leave, does not apply because asymptomatic individuals in quarantine do not have a “serious health condition,” as required for coverage.³⁰

Laws have been enacted in 10 states (DE, IA, KS, ME, MD, MA, MN, NJ, NM, SC) to prohibit discrimination in employment against individuals in quarantine. Most of these laws are quite limited, however, and only apply when there is an official order of quarantine and do not provide adequate remedies. Only 3 states (MA, MN, NJ) provide for employees to recover their lost wages. The other state laws only provide for reinstatement (IA) or penalties assessed against the employer (KS, ME), or they are silent on the issue of remedies (DE, MD, NM, SC). To promote compliance with quarantine, every state should enact a comprehensive law prohibiting discrimination in employment against individuals who are or were in quarantine.³¹

Many persons in the United States live from day to day on modest incomes. These individuals may be self-employed, classified as independent contractors, or work only part time. It would be an economic hardship for them to miss several days of work, such as the relatively long quarantine periods for severe acute respiratory syndrome (SARS; 10 days) or Ebola (21 days). Without a source of income replacement, many of these individuals would feel compelled to work and thereby risk spreading disease.

No federal law provides for income replacement for individuals in quarantine, although the proposed Emergency Flu Response Act of 2004 included provisions for a national quarantine compensation program.³² The program would have provided for the replacement of lost wages during quarantine, along with reinstatement and protection from employment discrimination. The proposal was never enacted.³⁰

Massachusetts is the only state to provide any income support, having enacted a law in 1907 that provides for a maximum of 2 dollars for each working day.³³ States have been reluctant to enact any legislation dealing with income replacement because it seems to encumber limited state funds. An emergency provision, however, need only establish a mechanism for income disbursement (e.g., via the unemployment insurance system), and it need not appropriate funds until needed. In an epidemic, income support for people in quarantine is essential, and avoiding the issue only threatens to delay and undermine the emergency response.

During the SARS epidemic, China, Hong Kong, Singapore, and Taiwan enacted laws to compensate individuals who lost wages or suffered other economic harms.³⁴ Canada and its province most affected by SARS, Ontario, instituted 2 main income-replacement programs: an employment insurance benefit program for individuals in quarantine and an income relief program for health care workers.³⁰ SARS involved the largest number of quarantined individuals in modern times, and the enactment of employment protection and income-replacement legislation has been credited with high rates of voluntary compliance with quarantine, even though such widespread use of quarantine in SARS has been questioned.³⁰ Similar legislation will need to be enacted if there is a public health emergency in the United States requiring quarantine. Proactively enacting such legal measures is far superior to a delayed, hasty, and perhaps poorly reasoned response.

CONCLUSIONS

In preparing to implement a future quarantine, public officials need to exhibit foresight and courage. Foresight means anticipating the likely public health, logistical, legal, and social challenges raised by a contagious disease outbreak. Foresight also involves planning, training, marshaling resources, and enacting legislation to enable a timely, methodical, comprehensive, and effective public health response, including quarantine if necessary. Part of planning for a successful quarantine is recognizing that all individuals subject to quarantine, including those placed in jeopardy by compliance, must be willing and able to comply voluntarily.

This is where courage comes in. Public officials in both elected and appointed positions need the courage to support legislation in advance of a public health emergency to create a safe harbor for all individuals complying with quarantine. Such measures running counter to public sentiment may be especially difficult to enact before a public health crisis. Other countries have enacted such legislation after the start of an epidemic, but having a legal framework in advance is a substantially better approach because people will not become infected during the course of legislative deliberations. Regardless of when the legislation is proposed, it will take courage to support it. Providing temporary legal immunity from deportation for undocumented immigrants, temporary legal immunity from arrest for criminal offenders, special care for individuals with substance use disorder and homeless youths, and income replacement for low-income citizens unable to work will be unpopular. Nevertheless, the alternative of a possibly ineffective quarantine in response to a deadly epidemic or pandemic would surely be much worse.

Notwithstanding safe harbor provisions, many individuals in the vulnerable classes we have identified would still opt to remain in the shadows. Assuming that public officials order a quarantine only in truly extraordinary circumstances, they also should undertake a wide range of communication and public health mobilization strategies to increase compliance.

The political difficulties in enacting and implementing the laws necessary to promote compliance with quarantine ought to give government officials some pause before advocating or imposing a quarantine in all but the most compelling circumstances. Such reticence would be a welcome change from the heedless manner in which quarantine was used in the United States during the 2014 Ebola outbreak.³⁵ There may be a limited role for quarantine in modern public health practice, but it must be undertaken with abundant care, including the safe harbor provisions needed to encourage compliance and thereby increase the likelihood of its success.