Above the Law

University of Illinois knew but didn't follow state law on isolation & quarantine. Why?

Photo by Adrian N on Unsplash

Illinois law is crystal-clear about authority & processes for the control of communicable diseases, especially when it comes to isolation and quarantine.¹

Surprisingly, the University of Illinois showed it had a good (if incomplete) grasp of these laws before deciding some didn’t need to apply to their staff & students.

Take a look at what Deborah Stone, Executive Director of HR, told employees on July 27, 2020. (I’ve inserted commentary where needed.)

Deborah Stone:

A very frequent topic these days is what happens when there's an employee who tests positive for COVID-19.

So, the first thing is that as soon as an individual, including our employees, has a positive test for COVID-19, Illinois Department of Public Health and the local health department are notified immediately. And the importance for that is that contact tracing is the responsibility of the local health department, and contact tracing is -- it's most effective when it occurs quickly and as soon as there's notification of a positive test.

Ms. Stone is correct that any contact-tracing efforts are the responsibility of IDPH and LHDs. These agencies can employ additional contact tracers where and when needed. Schools and other entities can cooperate with the health department to provide certain kinds of information in an outbreak investigation, but LHDs cannot grant or share contact-tracing authority with them.

She goes on to say,

What the Public Health employees do in contact tracing is they contact the individual who has tested positive in order to be able to have conversations and understand who it is that that individual, in our case, our employee, has had close contact with, and close contact doesn't mean walking past someone in the hallway, on the quad. Close contact for COVID* has a very specific definition, which is being in contact with someone less than six feet apart for longer than 10 minutes² at a single time when the person was -- when one of the persons was infectious and most likely when face coverings are not worn.

So again, if we think back to our layers of defense, if we maintain our social distancing, if we wear our face coverings, those are two key areas that reduce people meeting the threshold for a close contact.

So, Public Health determines who meets the threshold for close contact, and then Public Health contacts those individuals to determine what the steps are for those close contacts.

The “close contact” definition for covid-19 - invented by the CDC - has always been illogical for an airborne/aerosolized, endemic, seasonal respiratory virus. (See flu.) By March 2020, the horse had already left the barn on SARS-CoV-2; efforts to “stop the spread” were futile.

Still, Ms. Stone is right about health department personnel being responsible for deducing & reaching out to those individuals.

Stone continues,

But let's go back to the employee who tested positive. After they have been contacted with Public Health, Public Health will inform them that they are required to isolate for a minimum of 10 days. And this is true whether the person who tested positive has any symptoms or not, it's true whether if they have symptoms and their symptoms go away by day five, they are still required to isolate for that minimum of 10 days. And Public Health will maintain close contact.

They will be in constant contact with the employee who is in isolation and let them know when they can be released from isolation.

Again, it’s the public health department - not the University - that serves notice to individuals of any “requirement” to isolate after testing positive for or being diagnoses with a particular pathogen. (I’d be interested in seeing the orders that were given.)

I doubt the Champaign-Urbana PHD was “in constant contact” with isolated employees. Illinois code encourages LHDs to work with local entities to ensure an isolated person has “adequate food, clothing, shelter, communication with persons outside these settings, medication, and medical care”.³  Only U of I employees can verify whether such steps were taken.

Back to Ms. Stone:

Now, one thing is the employee is not required to share the medical diagnosis with us as the employer, and that's true for any personal medical information.

However, especially if the employee is in a job that requires them to be on campus, they need to inform the supervisor that they are unable to work due to a medical condition at a minimum.

They are free to share that they tested positive, but they are not required to do so.

The university and our supervisors, we have the responsibility to make sure that we respect the privacy of the individual regarding this health information. So, if the employee shares with you that they did test positive for COVID-19, you have a responsibility to respect their privacy in that area.

This part is fascinating, because U of I employees were required to test weekly for covid. (Unvaccinated employees still are.) A test result is not a substitute for a medical diagnosis, but it’s certainly “personal medical information.” I defer to HR experts for further comment.

Stone then shifts to contact tracing.

Next. So, contact tracing, lots of people want to know about that, and will it be able to be sufficiently completed?

The Champaign-Urbana Public Health District in partnership with the university, the Health District is hiring additional contact tracers, who will be dedicated to following up with our university-related cases. So, that would be faculty, staff, or students who test positive for COVID-19, and so they are augmenting their staff.

It is their responsibility to do this work, and in -- on the university, the steering team is putting into place a structure, so that we can be sure we have -- are in good communication with CUPHD, so that if we need to take some unit actions, we will know when that is needed.

The word “partnership” sets off alarm bells. The Illinois Communicable Diseases code is clear about the Health Department’s authority and process for case investigation. In my opinion, U of I was in legally muddy waters with this preemptive collaboration with CUPHD. Also, whence the money from those additional contact tracers? Who all was on the “steering team” and what structure was put into place? Did the “structure” conflict with the law? Lots of questions about whether CUPHD was unlawfully sharing its authority with the University.

Here’s the last of Stone’s comments I’m highlighting:

One very important piece of information that I want everyone to know is that no one is required to quarantine, unless Public Health contacts you and instruct you to do so.

So again, simply knowing someone or having some casual contact with someone who tests positive for COVID-19 or being in the same unit or in the same class, it - with someone who tests positive for COVID-19 - does not automatically mean you need to quarantine. Only Public Health can place someone into quarantine based on contact with a positive individual. The unit will be contacted by staff in our labor and employee relations area with any specific guidance around cleaning or notification.

Stone gets it right and wrong here. She’s right that only the LHD - not the University, or the University bossing or being the mouthpiece for the LHD - can issue an order of isolation or quarantine to an individual or group of individuals. She’s wrong to imply that public health can simply place a person into quarantine with their wave of a wand, and that the person has no right to object.

There’s a Process

The process for isolating or quarantining individuals is outlined in the state communicable disease code. A verbal order suffices for 24 hours, if the LHD deems the person a threat to public health, but must be followed by a written order.

The written order isn’t “Hey, you have to quarantine for 10 days because we say so!” There are required components, including notice of the right to counsel and the right to request a hearing⁴. Did orders to U of I employee or students include that information?

Heck, the school didn’t even have to create a form. The Illinois Department of Public Health has one. (Below is a quarantine order form; the one for isolation looks the same.)

Why This Matters

Restricting freedom of movement is serious business, with potentially negative consequences. As one Cook County judge put it last March,

“The duration of an order of quarantine constitutes an infringement of a liberty interest as much as order of quarantine itself…The Court may not deprive one of their liberty interests without giving them the opportunity to confront the government’s witnesses and to present their own witnesses.”

Illinois law puts tight and lucid parameters around a health department’s authority to quarantine and isolate residents for good, Constitutionally-rooted reasons. U of I ignored these parameters (as did other Illinois colleges and K12 schools), despite knowing better.

Weeks after Deborah Stone’s HR video, the University issued a scathing email to undergrads, shaming some students for breaking “the rules” for covid.⁵

One brave young man, Xavier Josephs, was threatened with expulsion in October 2020, for refusing to quarantine. Josephs contended his positive covid test was inaccurate and (understandably) didn’t want to go to the school’s quarantine jail-dorm. The health department was involved, but it doesn’t sound like they apprised Josephs of his due-process rights. How many other students and employees were likewise issued orders from CUPHD that didn’t conform to legal criteria?

I don’t know. But U of I and CUPHD do.

Someone with legal standing, money, and guts might be able to hold these Illinois entities — and many more — accountable.

1. https://regulations.justia.com/states/illinois/title-77/part-690/subpart-a/section-690-10/ Note, too, that in the code, isolation is for a case of disease, i.e., the sick person who is being asked or ordered to stay away from other people. Quarantine is for contacts of the person who’s been diagnosed with a disease.

2. CDC later changed to 15 minutes.

3. https://regulations.justia.com/states/illinois/title-77/part-690/subpart-i/section-690-1325/

4. You can read more here about what an Illinois LHD has to do if an individual does not consent, but the IDPH quarantine form also makes the process clear.

5. U of I’s accusation is ironic, given the school seems to have been participating in unlawful quarantine and isolation directives.