Clear in Principle, Opaque in Practice: Data sharing between public bodies during COVID-19

 Róisín Costello, Dublin City University

The ongoing public health crisis generated by COVID-19 has drawn particular attention to the issue of data sharing between public bodies, as both Government departments as well as public bodies like the HSE seek to co-ordinate data collection and to map vectors for disease transmission and service need. The Data Protection Commissioner’s request to the Department of Social Protection concerning its access to travel information of individuals in receipt of social welfare, as well as the creation of dossiers on autistic children have raised concerns over just how data is shared between public bodies - and (as in the case of the daa) between public and non-State bodies.

 

The Data Protection Commission (DPC) has previously emphasised the need for transparency in public sector use of data and the need to ensure individuals are informed about how their personal information is used and for what purpose, who can access the information, and how the sharing of their data will impact them. These points of emphasis echo the decision of the CJEU in Bara to the effect that public sector use of personal data should be undertaken in a manner that reinforces the data protection rights of individuals. Yet the operation of data sharing between public bodies in Ireland is often only superficially clear and practically opaque.

 

The existence of a public health emergency has broadened the legal basis for the collection and processing of personal data under the GDPR, in particular in respect of health related data under Article 9. In the current context, Articles 9(2)(h) and (i) permit ‘special category data’ as defined under Article 9 to be processed in order to provide occupational or preventative medical services (h) or in order to serve the public interest in the area of public health in particular in the protection against serious cross-border threats to health.

 

There would seem, therefore, to be a range of variously specific legal basis on which public bodies can rely in the collection and processing of personal data during COVID-19 where the public interest and public health are concerned. However, the processing of such data, and its sharing must comply with the data protection principles and informational requirements outlined by Articles 12, 13 and 14 GDPR.

 

Yet beyond these basic informational requirements premised on a notice and consent model, there is little information publicly available which explains in detail what data is shared – and with who. The Data Sharing and Governance Act 2019 was introduced in an attempt to remedy this lack of transparency and to provide a unified legislative schema for data sharing between public bodies. The Act provides for the introduction of rules, guidelines and governance standards for data sharing.

 

In particular, the Act provides for the creation and publication of data sharing agreements in an effort to clarify what data is being shared and between which state bodies. The Act would therefore provide for greater transparency, as well as providing for the creation of broader and more specific data governance architectures. However, the provisions under s.15-22 which govern the creation of Data Sharing Agreements as well as under s.63-66 dealing with governance of data including special category data (which includes health data), have not been commenced as of writing.

 

The result is, that while non special category data can be shared for one of the broadly drawn, functional reasons outlined in s.13, the public bodies involved are not obliged to publish details as to the agreements in respect of such sharing beyond the more minimal requirements under the GDPR and the 2018 Act which are directed at the individuals whose data is involved, rather than the public at large.

 

This means that the extent to which data is being shared among public bodies, and which public bodies are sharing such data, is difficult to gauge for those not actively and individually involved in the process. While the broad principles of the operation of data sharing may be discernible, the practical operation and more granular detail of sharing is less clear.

 

Róisín Á Costello is an Assistant Professor at Dublin City University School of Law & Government.

Suggested citation: Roisin Costello, ‘Clear in Principle, Opaque in Practice: Data sharing between public bodies during COVID-19’ (20 April 2021) https://tcdlaw.blogspot.com/2021/04/clear-in-principle-opaque-in-practice.html.

Structural Discrimination and Inequities In COVID-19 Infections and Deaths

Ruqaiijah Yearby, St Louis University

Seema Mohapatra, Indiana University

 

[This blog is based on our article entitled, Systemic Racism, The Government’s Pandemic Response, and Racial Inequities in COVID-19, forthcoming in 2021 in the Emory Law Journal.]

 

Introduction

During the COVID-19 pandemic, low-income communities, low wage workers, and racial and ethnic minorities have been impacted disproportionately by COVID-19. In fact, there is some overlap between class and race in inequalities in employment and health care, that are associated with inequities in COVID-19 infections and deaths. For example, many low-wage workers, who are predominantly racial and ethnic minorities, are employed in essential jobs that lack paid sick leave and health insurance. This lack of benefits causes them to go to work even when they are sick and prevents them from receiving appropriate medical treatment. As a result, these workers have disproportionately been infected and died from COVID-19. Unequal access to employment protections and health care are a result of structural discrimination, which refers to the ways in which laws are used to advantage those in power, while disadvantaging powerless low-income communities and communities of color. 

 

Meat and Poultry Processing Workers: Poor and Unprotected by the Law

In the United States, between 6 to 8% of all the COVID-19 cases and 3 to 4% of all COVID-19 deaths are tied to meat and poultry processing plants. As of March 31, 2021, 58,312 meatpacking workers had been infected with COVID-19 and 286 had died from COVID-19. More than half of workers in the US who work in meat processing are people of color. Fifty-one-and-a-half percent of those who are considered frontline meatpacking workers are immigrants, compared with 17.0 percent of all workers in the US. In contrast, 19.1 percent of frontline meatpacking workers are white, compared to 63.5 percent of all workers. Furthermore, 45% of frontline meatpacking workers are low-income. Meat and poultry processing workers have been deemed essential workers during the COVID-19 pandemic. Yet, they often lack paid sick leave, while meat and poultry trade associations and corporations have made record profits. 

 

In the US, the federal government enacted several economic relief bills that provided paid sick leave, including the Coronavirus Aid, Relief, and Economic Security Act (CARES Act).  However, the CARES Act left out meat and poultry processing workers because it only applied to businesses with less than 500 workers, and most meat and poultry producers employ more than 500 workers. In fact, JBS employs 3,000 workers at one plant, but has not provided the workers with paid sick leave or covered payments for COVID-19 testing. Additionally, because many meat and poultry workers are undocumented immigrants, the CARES Act does not cover them. Thus, the laws disadvantage the workers, while advantaging powerful companies who do not have to pay works for sick leave. Many of these workers also cannot afford to take time off from work because of punitive attendance policies.

 

Before the COVID-19 pandemic, meat and poultry processing companies’ standard attendance policies were punitive. Companies issued points for workers that missed work; and workers that accumulated too many points were fired. These policies have persisted throughout the pandemic as JBS and Tyson actively penalizedworkers for taking time off, even for illness. 

 

Specifically, Tyson and JBS meat and poultry processing workers are required to go to work even if they are experiencing symptoms of COVID-19 or are awaiting test results. This was confirmed by JBS SpokespersonNikki Richardson, who noted that “points were not assessed against team members for absences due to documented illness.”

 

Excused absences for COVID-19 are only given if a worker has physician documentation of a positive COVID-19 test, otherwise the worker is accessed points. This attendance policy is associated with increased rates of COVID-19 infections. Due to the fear of being assessed points, many workers cannot access testing, so they go to work sick. In part due to these attendance policies, meat and poultry processing companies were able to continue production and increase profits, while workers continued to be infected and die. 

 

Tyson announced a net income of $692 million in 2020 up from $369 million in 2019, and expects a revenue of $42 billion in 2020 as a result of increased production. To date, over 12,523 Tyson workers have been infected with COVID-19. Tyson is being sued in Iowa for a COVID-19 outbreak for requiring workers, including those transferred from other facilities with COVID-19 outbreaks, to work long hours in cramped condition, and ignoring letters from county officials asking Tyson to close the facility “to ensure the safety and well-being of Tyson’s valuable employees and our community.” Yet, Tyson is not alone. 

 

Meat processor JBS reported $581.2 million in net profits in the third quarter of 2020 beating analyst’s forecasts. At the end of 2020, JBS reported a boost in net revenue by 32% for 2020 as compared to net revenue in 2019. A majority of the profit, 87%, was made in the fourth quarter of 2020 and came from meat exports from the US to China. JBS was fined $15,615 due to six worker deaths and 290 worker COVID-19 infections in its Greeley, Colorado plant tied to an outbreak that began in April 2020 and was not resolved until October 2020, compared to the $21.4 million fine levied against BP after an explosion killed fifteen workers. JBS has challenged the fine, even as they enforced attendance policies that penalized workers for staying at home when they were sick at the Greeley plant. 

 

Specifically, the attendance policy at the Greeley plant allowed for 6 points for absences before firing, which was less than the 7.5 points allowed before the pandemic. Workers could only recoup points by getting physician documentation of a positive COVID-19 test and calling an English-only attendance hotline. However, many workers do not speak English or have a physician to write the note. Thus, many workers continued to work while they are sick in large part because they could not obtain physician documentation of a COVID-19 infection, increasing the spread of the disease throughout the plant.  A new outbreak of COVID-19 infections at the JBS Greeley, Colorado plant began in November 2020 with 20 new infections. Currently, the law does not prohibit attendance policies that benefit companies and harm workers. This has been exacerbated by lack of equal access to testing, treatment, and vaccines for low-income communities and communities of color.

 

Low-Income Communities and Communities of Conor: At Risk of Infection, But Lacking Access to Testing, Treatment, and Vaccines

Research studies show that US health care institutions have closed hospitals in low-income communities and communities of color to relocate in more affluent communities, which has disproportionately harmed low-income communities and communities of color. Decisions to close hospitals in low-income communities and communities of color often failed to consider the need for the equal distribution of health care facilities among all communities, leaving these vulnerable communities without access to health care and provider services. The governments’ decision to use hospitals as COVID-19 testing and treatment sites, while closing clinics and other community based health care facilities was seemingly class and race “neutral.” Nevertheless, the closed health care facilities were disproportionately located in predominately low-income communities and communities of color, limiting these communities’ equal access to coronavirus testing and treatment during the pandemic. 

 

Although preventable, similar inequities have occurred with COVID-19 vaccinations, with Black and Latino individuals being vaccinated at much lower rates than white people. In the St. Louis region, where the first person to die from COVID-19 was a Black nurse, data shows that 71% of those vaccinated were white people, while only 8% Black people were vaccinated. This is also true in Chicago, where Black people make up 30% of the population, 60% of all the COVID-19 case, but only 19% of those that have been vaccinated. Such a result was preventable had there been a government response that proactively worked to prevent these inequities.

 

Yet, some states, like Texas, discouraged efforts by some counties to focus on vulnerable zip codes. Texas Governor Abbott threatened pulling Dallas’ vaccine allocation when county officials indicated they were planning to target areas of the county with high minority populations. As a result, county officials reversed course from that plan, leaving these communities without equal access to vaccines. President Biden set up a federally sponsored vaccine site in those vulnerable areas in Dallas as a response to address these inequities. However, as of March 2021, Texas is still trailing behind other states in terms of both vaccination rates and equity.

 

What Can Be Done

The disparate conditions discussed above are examples that demonstrate how laws and policies are hurting low-income communities and communities of color. These examples of structural discrimination will continue to contribute to inequities in infection and death from COVID-19, unless laws and policies are changed. There are numerous ways law can provide support to address the needs of low-income communities and communities of color. 

  

Provide Paid Sick Leave and Disallow Punitive Attendance Policies

Essential workers need paid sick leave so they do not go to work while showing symptoms of COVID-19 to earn much needed income. Additionally, federal, state, and local governments must ensure that workers are not penalized for staying home while sick, which just encourages sick workers to go to work and potentially expose others. If the federal government deems certain workers as essential during this pandemic, those workers need to know that they have paid sick leave if they fall ill due to the coronavirus. Some states have expanded requirements for paid sick leave, due to the pandemic. Cities, such as Oakland, California, arerequiring that employers provide paid sick leave to essential workers during the pandemic. However, comprehensive paid sick leave should be required and supported at a federal level. Furthermore, the government should prohibited punitive attendance policies that require sick workers to come to work is a recognized hazard that is likely to cause death or serious harm.

  

Provide Hazard Pay for Essential Workers

Low-wage essential workers need to be provided adequate hazard pay if they are going to be deemed essential workers by the federal government. Legal requirements can help ensure this support. Meat and poultry processing companies, as well as those that employ essential workers, should be required to provide workers with hazard pay, which should increase as the company’s net profit increases. Many US localities, such as Seattle, WA, Long Beach, CA, and Oakland, CA have enacted hazard pay mandates for grocery workers. While these laws have been challenged because grocery stores argue that their profit margins cannot support these payments, that is not the case for meat and poultry companies and many other companies that employ essential workers.

  

Provide Free Health Care for Low-Income Communities and Communities of Color

Although the CARES Act required private insurance companies, Medicare, and Medicaid to provide free diagnostic testing for the virus that causes COVID-19 and visits related to such testing without cost sharing, deductible payments, or prior authorization, this did not go far enough. Testing has been scarce in many parts of the country, and many sites were requiring a physician’s order to get a test. Many essential workers do not have employer-sponsored health care coverage, work in states that did not expand Medicaid under the Affordable Care Act (ACA), and cannot afford health care coverage. Additionally, many undocumented immigrants, who are essential workers, lack access to Medicaid or ACA exchanges and thus are uninsured. The CARES Act permitted states to create an option to cover COVID-19–related testing for those who are uninsured individuals with a federal match, but it did not require this support. If workers are being asked to provide essential services, the federal government needs to ensure that employers provide free and frequent COVID-19 testing. Furthermore, the federal government must provide funding for employers to cover all health care costs related to any suspected or confirmed COVID-19 infection for the worker and their family members, regardless of immigration status. This type of protection would help ensure workers seek care and protect their families.

 

Provide Equitable Access to Vaccines for Low-Income Communities and Communities of Color

There are some bright spots in some of the governmental testing and vaccine responses, which should be adopted in other states to address structural discrimination. Some governments have already begun to ensure that predominately Black and Latino communities have access to testing, such as North Carolina where they arranged for testing facilities available to Latino farmworkers. Some areas, like DC, are targeting certain zip codes with more low-income and underserved people.

 

Residents of these areas have earlier access to vaccination appointments than non-residents. New York and California tried similar approaches, but in some cases, people from those zip codes were not the ones who were able to get vaccinated. It is a delicate balance between ensuring access to vulnerable zip codes and asking for proof of residency and other tracking measures, which may dissuade both undocumented individuals and those who have had been justice-involved. 

 

Other states like Montana and Utah are prioritizing Native Americans and other racial ethnic groups who may be at an elevated risk of COVID-19 complications in Phase 1B and Phase 1C respectively. Additionally, many states are setting up hotlines to help people sign up for vaccines who may have trouble navigating online sign ups. Others are increasing vaccination clinics in underserved areas. For example, Colorado is aiming to establish vaccine clinics in areas with a high minority population. These are good efforts, but the federal government’s initial lack of attention and response to vaccinations harmed low-income communities and communities of color the most, so it must now act intentionally to address these inequities.

Looking Forward

Here, we suggest targeted legal and policy measures that should be immediately implemented to address structural discrimination and protect low-income communities and communities of color. These are vital to addressing inequities in COVID-19 infections and deaths. We note, however, that this is not a comprehensive list. To achieve true health justice for all, interventions to address the root causes of inequity, including all community conditions among them environmental and educational factors, are necessary.

 

Ruqaiijah Yearby is a full professor and member of the Center for Health Law Studies at Saint Louis University School of Law. 

Seema Mohapatra is a tenured associate professor of law and dean’s fellow at Indiana University Robert H. McKinney of Law. 

 

Suggested citation: Ruqaiijah Yearby and Seema Mohapatra, ‘Structural Discrimination and Inequities In COVID-19 Infections and Deaths’ COVID-19 Law and Human Rights Observatory Blog (15 April 2021) https://tcdlaw.blogspot.com/2021/04/structural-discrimination-and.html

Is Mandatory Hotel Quarantine Compatible with EU Law?

[Editor's note: today and yesterday we have featured two blogposts that address the legal issues around mandatory hotel quarantine from different perspectives. Today Professor Tobias Lock of NUI Maynooth addresses the EU law issues. Those interested in the constitutional issues can consult Professor Conor O'Mahony of University College Cork’s post from yesterday].

Tobias Lock, Maynooth University

The Health (Amendment) Act 2021 – signed into law on 7 March – provides for mandatory hotel quarantine for two types of travellers: those who have been in ‘in a designated state at any time within the period of 14 days prior to’ arriving in Ireland; and those who have not been to a designated state, but cannot produce a negative PCR test result upon arrival in Ireland. Travellers – no matter what nationality – are required to quarantine in a hotel room for 14 days. This period can be shortened if the traveller receives a negative test result on a test taken on the 10th day; but it can also be extended if there is a positive test result. The term ‘quarantine’ is not defined in the Act, but the Government understands it to mean that the traveller must stay in their hotel room on their own at all times, save for pre-booked short ‘fresh air breaks’.

 

The Act gives the Minister for Health powers ‘to designate in writing any state … where there is known to be sustained human transmission of Covid-19 … or from where there is a high risk of importation of infection or contamination with Covid-19’.

 

This blog post argues that mandatory hotel quarantine is justifiable under EU free movement law, but that the very narrow exceptions to it in the legislation must be interpreted broadly for mandatory hotel quarantine to be a proportionate restriction of EU law rights.

 

Who can rely on EU free movement law?

According to Article 21 (1) TFEU, EU citizens have the right to move and reside freely within the territory of the Member States. The Citizens’ Rights Directive (CRD) provides further details: Article 5 CRD stipulates a right of entry; and Article 6 a right to reside for up to three months without any conditions or formalities.

 

According to Article 3 CRD, these rights entitle EU citizens ‘who move to or reside in a Member State other than that of which they are a national’ as well as their family members (e.g. spouse or children) who accompany them. It does not matter whether they enter that other Member State from within the EU or outside.

 

Irish citizens are not within the scope of the Directive when entering the state as EU citizenship law does not cover purely internal situations, i.e. where there was no movement across an EU border. However, the famous Surinder Singh case law of the Court of Justice of the EU extends EU citizenship rights to a member state’s own nationals where that national has previously moved to another EU member state and is now returning. While Singh itself concerns the status of the returning citizen’s spouse, its reasoning shows that returning citizens enjoy all rights associated with EU citizenship as otherwise a ‘national of a Member State might be deterred from leaving his country of origin in order to pursue an activity … as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national …, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State’.

 

Hence an Irish national returning from another EU member state where they might have worked or studied or been on holiday can rely on EU free movement law against the Irish state.

 

By contrast other EU nationals can do so even when entering Ireland from a third country, so that the for the question whether mandatory hotel quarantine is compatible with EU law it is irrelevant where the EU citizen is entering the state from. According to media reports, the initial list of ‘designated states’ would have seen an additional 16 EU member states on that list, but this was pared down to only one (Austria), allegedly due to concerns voiced by the Attorney General that this could be contrary to EU free movement law. Yet given that EU free movement law applies even for arrivals from outside the EU – so long as they are non-Irish EU citizens – this advice, if it was indeed given, was based on a category error: it is the status of the traveller as an EU citizen that is decisive, not the country where they have travelled from.

 

Restriction of free movement rights

There is little doubt that mandatory hotel quarantine constitutes a restriction of EU citizens’ free movement rights: it denies their right to move freely within Ireland during the period of mandatory quarantine and furthermore, it has a deterrent effect on anyone considering exercising their free movement rights to come here in the first place, e.g. holidaymakers or other visitors, so that the measure also has a restrictive effect on the rights to enter the state and to reside there for up to three months (or longer provided additional criteria are met).

 

According to Article 27 CRD, EU citizens’ free movement rights can be restricted, however, on grounds of public policy, public security or public health. According to Article 29 CRD only diseases ‘with epidemic potential’ can be used to restrict free movement, which is the case with Covid-19. Additionally, every measure restricting free movement law must comply with the general EU law principle of proportionality.

 

Furthermore, mandatory hotel quarantine not only constitutes a restriction of the right to free movement, but also a restriction of the right to liberty guaranteed by Article 6 of the Charter of Fundamental Rights (CFR). According to Article 51 (1) CFR, the Charter applies when a member state ‘is implementing Union law’, which occurs – as is the case here – where a member state restricts free movement rights. Most Charter rights can be restricted under the conditions formulated by Article 52 (1) CFR, which are that the limitation must be provided for by law, respect the essence of the right concerned, and be proportionate.

 

Justification of mandatory hotel quarantine

As a matter of EU law therefore any mandatory hotel quarantine measures affecting those exercising the EU rights must be meet the proportionality test. The measure must pursue a legitimate aim; it must be suitable, i.e. actually capable of achieving this aim; it must be necessary, i.e. it must be the least restrictive measure to effectively achieve the aim; and it must strike a proportionate balance between the competing interests involved.

 

Mandatory hotel quarantine pursues the legitimate aim of protecting human life and public health. It is also a measure suitable to achieve this aim: by forcing people arriving in the state to reduce their physical contact with other persons to zero for two weeks, there is a very high likelihood that they will not pass on the virus if they carry it.

 

It is questionable, however, whether mandatory hotel quarantining is both necessary and proportionate.

 

Necessity

Mandatory hotel quarantine would only be necessary if there are no alternatives that would be equally effective in preventing the spread of Covid-19. Three potential alternatives come to mind: production of a negative PCR test result upon arrival; full vaccination against Covid-19; self-quarantine at home.

 

A negative PCR test result obtained before coming to Ireland does not guarantee that the traveller has not infected themselves after the test or indeed that the test is not a false negative. Hence it is not is as effective at preventing the spread of Covid-19 as hotel quarantine.

 

The same is true for full vaccination against Covid-19, but for different reasons: scientists are not yet certain whether vaccination prevents infection and transmission of Covid-19. In cases of scientific uncertainty, EU law allows member states to operate on the basis of the precautionary principle, i.e. if there are reasonable grounds for concern about negative effects of an activity – such as travel even if vaccinated – then member states have discretion to restrict that activity in the interest of public health (see e.g. the Pfizer decision, in which the General Court upheld an EU ban on antibiotics in animal feed despite scientific uncertainty as to the effects on human health). Hence mandatory hotel quarantine even for those vaccinated is likely to be considered ‘necessary’.

 

The situation is less clear with regard to the alternative of self-quarantine. If a traveller is able to quarantine at home without having any contact with another person for 14 days, then quarantining at home could be considered a less restrictive but equally effective measure. The key concern on part of the state would be compliance: whereas the state can enforce hotel quarantine relatively easily, enforcement of quarantine at home is harder – and in case of a person quarantining in a home shared with others – nigh impossible. Hence mandatory hotel quarantine could arguably be considered the more effective alternative. However, as will be argued below, it may well be disproportionate in the strict sense.

 

Proportionality - balancing

Finally, mandatory hotel quarantine must be proportionate stricto sensu, i.e. when balancing the competing interests involved, the state’s interest in protecting public health must prevail. The following factors are broadly in the mix: on the one hand, Covid-19 is highly contagious and presents a high risk to public health and human life. Mandatory hotel quarantine is also not the most severe measure the state could have adopted: a complete travel ban would constitute a stronger restriction of free movement rights, so that mandatory hotel quarantine could be seen as a way to facilitate free movement despite the pandemic.

 

On the other hand, mandatory hotel quarantine consists in a severe restriction of the right liberty protected by Article 6 CFR: travellers must not leave their hotel room except for short breaks for 14 days. Leaving mandatory quarantine constitutes a criminal offence. Furthermore, it involves a considerable cost of ca. 1800 euro for a single traveller.

 

The regulations formulate certain exemptions, but these are mostly confined to persons performing certain jobs, such as airline pilots or diplomats. Most people can only escape mandatory quarantine by requesting a release from quarantine ‘on urgent humanitarian grounds’, reportedly applied in the case of a fully vaccinated traveller who had travelled to Ireland to be with his dying father.

 

Additionally, travellers who are unable to meet the quarantine cost, must still do so, but may apply for an exemption, the granting of which is in the discretion of the Minister (see Regulations 11-14 of S.I. No. 125/2021).

 

These exemptions are clearly designed to ensure compliance with proportionality. But it is doubtful that they go far enough at least in the following cases.

 

First, where a traveller can show that they are able to self-quarantine, it is hard to see how in light of the severe restrictions to personal liberty mandatory hotel quarantine can be required. The only argument in favour would be easier enforcement. It would, however, seem to be possible to enforce self-quarantine at home by way of regular checks, etc. The fact that enforcement of self-isolation requirements failed last summer cannot be a valid excuse for imposing far stricter measures. Only if the state can show that it enforcement is not possible, might this be the case. Hence EU law may force the state to grant an exemption under the condition that the traveller self-isolates at home. While the legislation only allows these for ‘humanitarian reasons’, the duty to interpret domestic legislation as far as possible in such a way that it is compliant with EU law (indirect effect), means that a person able to self-isolate should be able to avail of this exemption.

 

Secondly, EU law restricts the discretion of the state where the determination of ‘designated countries’ and exemptions from hotel quarantine or its costs are concerned. As for the former, EU law requires that the selection of countries is not arbitrary. It must therefore happen according to coherent criteria. The Health (Amendment) Act 2021 is fairly vague in this regard and more objective criteria – e.g. express reliance on the incidence of the disease in the country of origin – would make measures more EU law-proof.

 

Thirdly, where the situation of the individual traveller is concerned, the state’s exercise of discretion has to take account of EU law requirements, i.e. in every single case the state will need to determine the proportionality of the measure as a matter of EU law. This is a highly fact-specific exercise, so it is difficult to make general pronouncements on who may or may not have to be exempted from mandatory quarantine or at least from having to pay for it. For instance, a student returning home from their Erasmus year abroad might have a good case under EU law that they should not have to bear the costs of quarantine. The government seems to now recognise this when it announced that it would cover students’ quarantine costs. If mandatory hotel quarantine is still in place in the autumn, then the same would have to apply to incoming (Erasmus) students. Additionally, others returning from the EU (e.g. after completing an internship) who do not have the means of paying for their quarantine will have a good case under EU law to be exempt from having to pay.

 

Conclusion

In conclusion, this blog post showed that mandatory hotel quarantine is largely compliant with EU law requirements. However, given the far-reaching restrictions to personal liberty entailed, the exceptions are formulated too narrowly and will provoke challenges. Such challenges can be avoided if the state exercises the discretion given to it with good measure, at least in those cases where EU law applies: i.e. where EU citizens are entering the state or where Irish citizens are returning from another EU member state.

 

Tobias Lock is Professor and Jean Monnet Chair in EU Law and Fundamental Rights at Maynooth University. Professor Lock’s work is supported by the Erasmus+ Programme of the European Union.

 

Suggested citation: Tobias Lock, ‘Is Mandatory Hotel Quarantine Compatible with EU Law? (14 April 2021) https://tcdlaw.blogspot.com/2021/04/is-mandatory-hotel-quarantine.html

Questions about Quarantine: Exemptions and Proportionality

Conor O'Mahony, University College Cork

[Editor's note: today and tomorrow we are publishing two blogposts that address the legal issues around mandatory hotel quarantine from different perspectives. Today Professor Conor O'Mahony of University College Cork addresses the constitutional issues. Tomorrow Professor Tobias Lock of NUI Maynooth addresses the EU law issues.]

Background

The constitutionality of mandatory hotel quarantine has been a point of contention for some weeks. In February, the Taoiseach claimed that it would be unconstitutional to introduce such a scheme. In response to those claims, I wrote a blog arguing that although mandatory hotel quarantine restricts a range of constitutional rights (including, eg, personal liberty and freedom of movement), it pursues a legitimate aim and would likely be constitutional in principle, particularly “if it included some narrowly drawn exceptions to cater for cases where the impact was most extreme”. Similar points were made by David Kenny in the Irish Times.

 

There are clearly strong reasons supporting quarantine as a public health measure. COVID19 was originally brought to Ireland by travel; the second wave was caused by travel from Spain after the first wave had been suppressed; the third wave saw new variants introduced from the UK that worsened the situation; and recent outbreaks can be traced to foreign travel, including even more concerning new variants.

 

The Government dropped its claims that mandatory hotel quarantine would be unconstitutional and the Oireachtas enacted the Health (Amendment) Act 2021 in March. The Act empowers the Minister for Health to make regulations designating States as being subject to the requirement to quarantine; at the time of writing, 71 countries/territories are so designated. The Act also defines a range of “exempted travellers”, and empowers the Minister to make regulations adding to that list.

 

Within weeks of the commencement of mandatory hotel quarantine, multiple cases have generated courts proceedings challenging the legality of the detention in quarantine and raising the question of whether the scheme contains sufficient flexibility to avoid the harshest impacts. Two people have been released from quarantine and their challenges to its constitutionality struck out as a result; but other cases are due to return before the courts and seem likely to generate direct challenges to the legislation itself. 

 

Broadly speaking, the issues that have arisen include requiring people to quarantine even where they have been fully vaccinated against COVID19 and/or have tested negative since their arrival; requiring people to quarantine notwithstanding pressing reasons for travel (such as the impending death of, or funeral for, a close relative); and requiring people of limited means to pay for their stay in hotel quarantine. In all three categories, the argument turns on the breadth of the exceptions and the proportionality of the approach taken, and the question of whether the law goes further than necessary to achieve the legitimate aim of preventing transmission of COVID19.

 

Vaccinations and Negative PCR Tests

Requiring a person to quarantine even though they have been fully vaccinated and/or tested negative since their arrival appears at first glance to be draconian: it subjects a person to 14 days of detention when it could be suggested that they present little or no risk of transmitting COVID19 to anyone else. However, beneath the surface, it is less clear-cut. While there is clear evidence that vaccination significantly reduces the risk that a person will become seriously ill from COVID19, the evidence that vaccines prevent a person from transmitting the virus to others, while emerging, is weaker and more contested.

 

Verifying that a person has been fully vaccinated in another country is not straightforward; in the absence of an international recognition system, such an exception may be open to abuse. PCR tests have a significant rate of false negatives, and a person released from quarantine after a negative test may in fact be infected and may transmit the virus to others. Thus, a challenge to the law on this ground, while arguable, would be met with a range of scientific and policy defences by the Government, to which a court would afford a strong degree of deference.

 

Humanitarian Reasons

A requirement to quarantine for 14 days might prevent a person from seeing their dying family member for the last time, or from attending their funeral. The impact here might not be limited to people hoping to see their dying elderly parents (a possibility denied to many due to COVID restrictions). The Department of Health has confirmed that attending a funeral does not qualify for an exemption from the requirement to quarantine. There is a possibility of appealing on humanitarian grounds, but this does not cover funerals. 

 

This category of cases is different to vaccination cases in that the person travelling cannot claim to present a lower risk than anyone else of transmitting COVID19. On the other hand, the numbers involved will be relatively small, and PCR testing pre- and post-arrival could reduce (if not eliminate) the risk of transmission. In this light, the impact on that person and on their family does seem especially harsh. However, it is important to emphasise that the courts have stressed in cases like Murphy v IRTC [1999] 1 IR 12 and MD (A Minor) v Ireland [2012] 1 IR 697 that it is not the role of the courts to decide that the Oireachtas could or should have made a different policy choice. A law will only be found to be disproportionate or discriminatory if it is found to be beyond the competence and discretion of the Oireachtas; and those judgments are just two of many examples of courts affording the Oireachtas a very wide latitude.

 

Cost of Quarantine

Running a system of quarantine is expensive, and the State could argue that it is entitled to seek to defray that expense by shifting the cost to those who will use the system. It could also argue that imposing a charge is part of a legitimate policy of seeking to deter people from all but the most essential of travel during the pandemic. The scheme does include a possibility of applying to defer payment on grounds of hardship. However, at a cost of €1,875 per passenger, there is a big difference between deferring payment and being exempted from the cost (or the requirement to quarantine) altogether.

 

Moreover, some travel clearly is essential, and not everyone who has an essential reason for travel will be able to pay the cost of quarantine either now or at a deferred date. The announcement that the Government will pay the costs of quarantine for students returning from studying abroad on Erasmus placements recognises this fact. Others of limited financial means may need to travel considerable distances for pressing family reasons and be unable to afford quarantine after paying for the costs of travel; but at the time of writing, no additional provision has been made for such cases.

 

A case with the right fact pattern involving essential travel and impecuniosity might attempt a constitutional challenge to quarantine charges on a basis not dissimilar to part of the judgment in Redmond v Minister for the Environment [2001] 4 IR 61. In Redmond, a requirement to place a deposit before running for election was found to violate the equality guarantee of Article 40.1 for indirectly discriminating against people of limited financial means. Herbert J stated at 80 that “a law which has the effect, even if totally unintended, of discriminating between human persons on the basis of money is an attack upon the dignity of those persons as human beings who do not have money.”

 

Conclusion

It seems likely that a direct constitutional challenge to the system of mandatory hotel quarantine will find its way to the High Court sooner rather than later. When it does, it will combine technical considerations regarding proportionality and judicial deference and human considerations concerning harsh impacts on individuals and families. Many lawyers agree that any challenge faces a steep hill to climb. An applicant who can make arguments based on a combination of the above circumstances (ie vaccination, negative test, humanitarian considerations, and possible inability to pay) seems best placed to discharge the burden of rebutting the presumption of constitutionality enjoyed by the relevant legislation. Moreover, it should be remembered that even a successful challenge would not necessarily invalidate the entire system; it may simply require an adjustment to the exemptions.

 

Conor O’Mahony is Professor of Law and Deputy Dean of the School of Law at University College Cork, where he teaches constitutional law, child law and children’s rights.

 

Suggested citation: Conor O’Mahony, ‘Questions about Quarantine: Exemptions and Proportionality’ COVID-19 Law and Human Rights Observatory (14 April 2021) https://tcdlaw.blogspot.com/2021/04/questions-about-quarantine-exemptions.html