By Manel Kappagoda, Sabrina Adler, Rebecca Johnson & Patrick Glass
The Centers for Disease Control and Prevention (CDC) and ChangeLab Solutions have developed a related training, Public Health Threats & the US Constitution: What Responders Need to Know About Equity, Law, and Public Health Authority. Beyond what is covered in this blog post, the training includes more detailed information about isolation and quarantine. To test your knowledge of the US Constitution and emergency response, take our quiz.
COVID-19, a type of coronavirus, is an extremely serious threat to public health and safety in the United States. Responding adequately and quickly to this pandemic can help save the lives of millions of Americans.
The most crucial intervention for preventing the spread of COVID-19 is widespread social distancing (sometimes called physical distancing),* which has been recommended or ordered by public health authorities at all levels of government: federal, state, tribal, territorial, and local. Social distancing is a common public health control measure, especially during outbreaks of communicable disease.
This blog post introduces important information about social distancing and discusses the legal authority for implementing social distancing as a mitigation measure to reduce infectious disease transmission in US communities. The concluding section discusses the implications of social distancing for health equity and the need to ease the burdens of social distancing on underserved communities.
What is social distancing?
What do public health officials mean when they say “social distancing”? The Centers for Disease Control and Prevention define social distancing as “remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters) from others when possible.” In the context of the current COVID-19 pandemic, that means staying home and physically away from other people as much as humanly possible. Social distancing measures are designed to limit interaction between people in order to avoid the spread of infectious diseases and protect vulnerable members of our communities.
In the context of the current COVID-19 pandemic, social distancing means staying home and physically away from other people as much as possible.
Many social distancing measures to stop the spread of disease are available to public health officials. These measures fall at different points on a spectrum of restrictiveness — that is, some options restrict individual liberties more than others. According to the Centers for Disease Control and Prevention, choosing the right social distancing strategy for a community depends on a number of factors:
- The epidemiology of the disease
- The community’s characteristics, such as population density
- The health care or public health capacity within the community
During an infectious disease outbreak, public health officials weigh these factors and then enact a response tailored to the situation at hand. In order to respect individual rights, the goal is always to use the least restrictive means necessary to confront the emergency. While the restrictions many communities are facing right now may seem extremely onerous, they are appropriate in light of the grave threat that COVID-19 poses to public health.
What are different types of social distancing?
As mentioned earlier, different types of social distancing form a continuum of mitigation strategies that address infectious disease transmission. These strategies, ranging from minimally restrictive to severely restrictive, can affect individuals, businesses, organizations, communities, and even entire states and nations.
One easy way to understand increasingly restrictive levels of social distancing is to imagine a typical American school. In this setting, a minimally restrictive social distancing intervention might be to alter schedules in order to reduce mixing of different groups (eg, stagger recess or entry and dismissal times). A moderately restrictive intervention might be to reduce the frequency of large school gatherings — such as assemblies and large classes — and limit the number of attendees at each gathering. A severely restrictive social distancing intervention might be to dismiss most of the student body or even close the school entirely.
Across the country, people are engaged in various forms of social distancing to help prevent the spread of COVID-19. Examples include employers’ closing offices and employees’ working from home; local governments’ cancelling live public meetings; and post offices’ requiring that employees remain at an appropriately safe distance from customers when completing transactions.
Who can order social distancing?
States, territories, tribes, and many localities have broad authority to act in the interest of the health, safety, and welfare of the public. This authority gives governments the ability to issue laws and regulations to protect the public’s health.
State laws generally delineate who has authority to order social distancing measures. Typically, during an outbreak of infectious disease, epidemiologists and scientists recommend measures that should be taken to avoid or reduce the spread of disease within a community. Next, state or local health officials issue an order based on those recommendations. Some states give local governments the power to issue such orders, while other states reserve it for themselves. The order from the governor of Washington State is representative of current orders responding to COVID-19. The order prohibits all people in Washington State from leaving their place of residence except to conduct “essential activities,” which are further defined in the order. Generally, the laws that are immediately relevant to states’ COVID-19 response deal with powers of the department of public health, control of preventable diseases, and emergency powers. These orders indicate that public health officials have determined that the outbreak poses a significant enough threat to warrant restricting individual liberties.
The US Constitution requires states and localities to balance public health measures against considerations of individual rights and to use the least restrictive measures possible in light of the threat.
This division of responsibilities and powers makes it very important that government officials and agencies implement clear communication and cooperation at state and local levels during a public health emergency. While the federal government can recommend actions related to social distancing, it cannot mandate that states put social distancing recommendations in place. In the case of COVID-19, the federal government has issued guidelines to slow the spread of the virus, including recommendations that people work or attend school from home and avoid gatherings of 10 or more people. In most cases, guidelines are not mandatory unless they are operationalized by states and localities through executive orders.
The goal of these state and local measures is to reduce the transmission of disease throughout a population. All mandatory social distancing actions raise legal issues:
- Who has the authority to restrict the movement of residents?
- Who has the authority to close public and private spaces such as schools, restaurants, or gyms?
- Who enforces social distancing orders?
- What are the consequences for violating social distancing orders?
- If authorities cancel public gatherings, do event organizers still have to pay performers and vendors?
Many of these issues are being clarified and resolved as they arise, through executive orders, government agencies, and, in some cases, the courts. As states and localities navigate the current COVID-19 emergency, the US Constitution requires them to balance public health measures against considerations of individual rights and to use the least restrictive measures possible in light of the threat.
From a legal perspective, the mandatory orders that jurisdictions use to respond to an infectious disease pandemic, such as stay-at-home orders or isolation and quarantine orders, place limitations on individuals’ constitutional rights. For example, stay-at-home orders put limitations on an individual’s constitutionally protected right to assemble peaceably. If the orders are challenged, courts will want to see scientific evidence that other less restrictive measures were not available to address the public health emergency. And from a policy perspective, public health leaders are keenly aware of the deep disruption and suffering these orders cause — for example, when workplaces and schools must close — and they weigh these factors carefully when making a decision to implement social distancing measures.
How will social distancing measures affect health equity?
Health equity means that everyone, regardless of who they are or where they live, has a fair and just opportunity to live a healthy life. Achieving health equity entails eliminating the drivers of health inequities — like structural discrimination, income inequality and poverty, disparities in opportunity, and governance that limits meaningful participation. Public health policies can advance or inhibit health equity, often through unintended consequences.
As jurisdictions put social distancing measures in place, they need to think about the members of their community for whom social distancing orders will prove especially challenging.
As jurisdictions put social distancing measures in place, they need to think about the members of their community for whom social distancing orders will prove especially challenging because they live in overcrowded housing; because they are experiencing homelessness; because they deal with mental health issues; because they rely on their school or another organization to provide them with breakfast and lunch; and for many other reasons that make it difficult to adapt to the dangers and complications posed by the COVID-19 pandemic. In addition, as retail establishments, restaurants, and other venues close in response to social distancing orders, many people are losing their jobs and their health insurance, exacerbating health inequities.
Many of the community members who might struggle with social distancing are the same ones who live with chronic illnesses that put them at greatest risk for COVID-19 and other infectious diseases. Public health professionals and decisionmakers who are putting social distancing orders in place are doing the right thing for the public’s health; the evidence that supports social distancing in a situation like the COVID-19 outbreak is clear. However, federal, state, and local decisionmakers can also take steps to ease the burden of social distancing on those who will be most severely affected by it.
At the federal level, the government has passed the Families First Coronavirus Response Act, which has provisions for paid sick leave, free coronavirus testing, and expanded unemployment benefits in recognition that many people will have to take time off from work and that others will lose their jobs during the epidemic.
At the state level, legislators are considering a range of strategies, including extending and expanding eligibility for critical programs such as Medicaid, unemployment benefits, and food stamps.
At the local level, many school districts are setting up food distribution sites so families who rely on federal school meal programs can pick up food daily. In cities across the country, decisionmakers are placing moratoriums on evictions in order to protect tenants who cannot work due to orders to stay at home.
All of these measures — and others — will be necessary to mitigate the health inequities that COVID-19 will cast into stark relief.
* We recognize that terminology is evolving toward physical distancing instead of social distancing as we collectively realize that although we are physically apart, we are all facing this pandemic together. Additionally, we recognize the effects of social isolation on stress, mental health, and well-being. We’ve used the term social distancing in this post so as not to confuse people who are following the news and may not be familiar with the term physical distancing.
This blog post is a publication of the Public Health Law Academy, which delivers online trainings on the use of law and policy to improve population health outcomes. The Public Health Law Academy is supported by ChangeLab Solutions and CDC.
Please see our training Public Health Threats & the US Constitution: What Responders Need to Know About Equity, Law, and Public Health Authority for more detailed information about the government’s authority to act during a disease pandemic. The training was developed by CDC and ChangeLab Solutions. To test your knowledge of the US Constitution and emergency response, take our quiz.
3/27/2020; updated 4/3/2020