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States Seek to Limit the Authority of Public Health

Date posted: Wednesday, February 17, 2021
Blog poster: Doug Farquhar, JD

State legislatures have introduced over 2,000 COVID-19-related measures for the 2021 legislative sessions, about one-half the number introduced in 2020. These bills cover liability relief for businesses from COVID-19-related lawsuits, occupational licensing, access to vaccines, and support for shuttered businesses. One topic of concern are bills to restrict public health from responding to the outbreak. The restrictions necessary to contain the COVID-19 outbreak have led policymakers to question the authority of public health boards to impose such restrictions.

Bills introduced in Alabama, Florida, Indiana, Missouri, Montana, South Carolina, Tennessee, Utah, Virginia, West Virginia, and Wisconsin seek to limit or provide oversight regarding the actions of public health officials to respond to health emergencies, specifically COVID-19. Any rules or policies implemented by public health officials to contain a public health emergency (e.g., COVID-19) could be subject to review or rejection by elected officials.

The Alabama legislature is looking at bills to rein in public health officials. Senate Bill 1 provides that the COVID-19 contact tracing process is voluntary and any individual who refuses or fails to cooperate in contact tracing is immune from liability arising from that refusal. House Bill 108 requires the state's largest health board to consider the recommendations of an advisory oversight board before issuing any resolution, order, or directive.

Indiana Senate Bill 48 seeks to limit the time in which an order, mandate, or prohibition issued by a local health board or local health officer may be in effect unless approved by the county or city executive. The bill also establishes a cause of action for an individual to file a court action concerning enforcement actions taken by a local health board or officer.

The legislature in Missouri is looking at five bills designed to modify public health authority. These bills include prohibitions on restricting public health boards from issuing orders that govern the number of people gathering on private residential property during a declared state of emergency, limiting public health orders during a health emergency to a period no longer than 14 days over a 2-year period, and removing the authority of county health boards to make public health orders, rules, or regulations.

Bills in Montana seek to require local boards of health to submit any order to a governing body for adoption and allow the governing board to object to any public health rule (SB 108, HB 236 Sess. 2021). These bills also remove the penalty against enforcement officers requiring them to render aid to a local board of health official. House Bill 269 would require a local board of health to seek approval from a governing body regarding any rules related to wastewater treatment and control.

South Carolina House Bills 3126 and 3218 would make it unlawful to accept federal funds to enforce federal mask or vaccine mandates. Tennessee House Bill 0575 limits the quarantine powers of county health officers.

A bill in Virginia would allow business owners who are forced to close because of a public health order to contest that order in court. If the business owner wins the court case, they would be entitled to twice the amount of civil penalties levied by the Department of Health (HB 5027 Sess. 2021). West Virginia House Bill 2015 requires rules of local boards of health to be approved by the county commission except in cases of a public health emergency.

In Wisconsin, Senate Bill 4 would prohibit government officials from mandating vaccinations against COVID-19.

The Utah legislature introduced Senate Bill 195, which would limit the powers of state and local health departments. The legislature also adopted a concurrent resolution (HCR 6 Sess. 2021) that recognizes and thanks the individuals who provide accurate data and information in relation to the spread of COVID-19 to the legislature, governor, and Utah residents.

About blog poster: Doug Farquhar is the director of Government Affairs at the NEHA in Denver, Colorado.