Statutory Powers to Address Epidemics

by Jery Payne

It’s a little known fact, but being a smart audience, you may have heard that an epidemic engulfed the nation and the world, which makes the epidemic a pandemic. It’s commonly known as “COVID-19,” which is a shortening of the phrase “Corona Virus Disease of 2019.”

In 2020, the governor of Colorado declared an emergency and invoked emergency powers to address the spread of the virus. The state required people to stay at home as much as possible, mandated people wear masks, and implemented many other mandates. Local health agencies also issued mandates. This led many people to wonder, “Can they do that?” And like any good lawyer, I’m going to say, “It depends.”

The Department of Public Health and Environment and local health agencies have many powers to control epidemics. First, the department has many statutory powers to protect public health, including the power to:

  • Close theaters, schools, and other public places, and to forbid gatherings of people;
  • Establish and approve laboratories;
  • Conduct laboratory investigations and examinations;
  • Establish and enforce standards for diagnostic tests by laboratories;
  • Purchase and distribute to licensed physicians, with or without charge, vaccines and other therapeutic products as necessary for the protection of public health;
  • Establish and enforce sanitary standards for the operation of just about any place used for public gatherings; and
  • Determine if there is a shortage of drugs critical to the public safety of the people of Colorado and declare an emergency to prevent the practice of unfair drug pricing.

In addition, the department has several statutory powers specific to addressing epidemics, including the power to:

  • Investigate and control the causes of epidemic and communicable diseases affecting public health;
  • Require any person who has epidemic information to report the information to the State Board of Health, without patient consent, of occurrences of the epidemic or disease;
  • Access patient medical, coroner, and laboratory records relating to epidemic and communicable diseases determined to be dangerous to public health;
  • Investigate and monitor the spread of epidemic;
  • Establish and enforce isolation and quarantine, and, for this purpose only, exercise physical control over property and the people necessary for the protection of public health; and
  • When a specific place is a continuing source of an epidemic, make it stop, and if necessary, eliminate it.

Together, these state statutes give the department broad powers to address epidemics.

Local public health agencies, including county, municipal, and district agencies, also have statutory powers, granted by state law, to control epidemics within their jurisdictions. Local public health agencies have the power to:

  • Carry out the public health laws and rules of the state board;
  • Administer and enforce the orders, rules, and standards of state health agencies;
  • Investigate and control the causes of epidemic or communicable diseases;
  • Establish and enforce isolation and quarantine, and, for this purpose only, exercise the physical control over property and the people necessary for the protection of public health;
  • Close schools and public places and prohibit gatherings of people when necessary to protect public health;
  • When a specific place is a continuing source of an epidemic, make it stop, and if necessary, eliminate it;
  • Establish and approve laboratories;
  • Conduct laboratory investigations and examinations;
  • Purchase and distribute to licensed physicians, with or without charge, approved therapeutic products the agency determines is necessary to protect public health;
  • Initiate and carry out health programs consistent with state law; and
  • Make necessary sanitation and health investigations and inspections for matters affecting public health.

Local boards of health are the policy-setting bodies for local health agencies. They develop policies and procedures to address epidemics and to administer and enforce the powers granted to local health agencies. This includes adopting rules and orders. Specifically, local boards of health have the statutory power to:

  • Develop and promote the public policies needed to secure the conditions necessary for a healthy community;
  • Determine general policies to be followed by the public health director;
  • Issue orders and adopt rules necessary for the proper exercise of the powers and duties vested in the local public health agency;
  • Accept and, through the public health director, use, disburse, and administer all aid for purposes that are within the functions of the local agency; and
  • To make agreements that may be required to receive money or other assistance.

A person who is negatively affected by a decision, which can be a rule or order of a state or local health board, department, or agency, may seek judicial review. The person must bring the case within 90 days after the decision is publicly announced. The court may affirm the decision or may reverse or modify it if the rights of the person have been prejudiced because the decision is:

  • Contrary to constitutional rights or privileges;
  • In excess of the statutory authority or jurisdiction of a state or local health board or agency;
  • Affected by any error of law;
  • Made or promulgated upon unlawful procedure;
  • Unsupported by substantial evidence in view of the entire record; or
  • Arbitrary or capricious.

Except in certain types of cases, judicial review of a board decision is conducted by the court without a jury. Even when statutory authority exists, a decision that violates the Colorado Constitution or the United States Constitution will be struck down if challenged. If a particular mandate is challenged, the court will review the record to determine whether to uphold or overturn the mandate based on whether the mandate is a reasonable use of the authority to protect public health.

Although my guess is that not many people have flipped through these statute pages for a mighty long spell, you can bet that they have certainly been flipped through a lot lately. These statutes are useful guides as we wend our way through these weird times.