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Law360 (October 20, 2020, 1:44 PM EDT ) The COVID-19 pandemic has brought new compliance risks and considerations for companies and individuals. In this Expert Analysis series, state attorneys general share their enforcement priorities.
Clare Connors
Hawaii's location in the middle of the Pacific Ocean informs and distinguishes our state's approach to the COVID-19 pandemic. We have no contiguous land borders with any other state or any foreign country — meaning that aid and assistance in the event of an emergency or disaster is at least a five-hour flight away.
While our geographical isolation underscores the need to protect our limited health care and consumer resources, it has also offered a unique opportunity to implement COVID-19 mitigation measures.
The novel coronavirus initially presented as a traveler's disease, spreading by vectors across states and countries. Using this information — as well as other data provided by state health experts — Hawaii sought to take advantage of its geographical isolation to mitigate travel-associated disease spread and preserve public health.
As a result, we significantly reduced the introduction of the disease into our state and bought ourselves precious time to stand up an unprecedented emergency response framework. Of course, any travel-related COVID-19 response measures had to be carefully calibrated, based on the best medical science available at the time and judged in light of pressing public policy goals.
This is where the Department of the Attorney General played a central role: We advised state agencies and government officials, provided constitutional analyses on a short timetable, and used all the resources of our office to create a clear legal framework within which policymakers and the public could make decisions.
While this pandemic has challenged our entire department, we approached the challenge by standing up teams of deputy attorneys general from different divisions. These teams had a mixed skillset and dedicated themselves to building expertise in discrete areas of the pandemic response, such as the expenditure of federal coronavirus relief funds and the myriad issues presented by the COVID-19 travel, and other mitigation, measures.
The teams dedicated to the travel measures analyzed the constitutional issues as the policies were contemplated, reassessed them as they were developed, defended them in court, and worked with the incident command and the governor's office to grant limited exemptions for certain categories of travelers.
Substantive expertise was provided by the Hawai'i Department of Health and the Hawai'i Department of Transportation, with whom we collaborated closely. Our criminal prosecution division and our investigations division also provided input and coordinated enforcement efforts with the counties.
As these mitigation measures are only as effective as they are enforceable, everyone had to work together to ensure the state's measures were science-driven, capable of effective enforcement, and flexible enough to accommodate unforeseen developments.
The most significant travel measure was the imposition of a 14-day self-quarantine period on all persons arriving into the state of Hawaii. On March 21, Gov. David Ige signed an emergency proclamation making the travel quarantine effective on March 26.
The 14-day travel quarantine period is based on what the medical community understands to be the standard outside incubation period of the COVID-19 virus. Thus, travelers infected en route to Hawaii will not spread the disease when they arrive as long as they follow quarantine.
The travel quarantine applies to residents and nonresidents alike. It excludes federal government employees on official duty and allows for exemptions to broad classes of critical infrastructure workers and to individuals with demonstrated humanitarian needs related to life events such as death, illness and other misfortunes. These travelers are required to stay in their self-designated quarantine locations unless doing their work or attending to matters related to their exemptions.
It is important to emphasize that Hawaii has never prohibited or restricted travel to the state; rather, the measures temporarily limit movement once travelers arrive. However, these measures coincided with a global slowdown in travel caused by the fear of contracting this deadly disease and amid federal restrictions on international flights.
As a result, a Hawai'i Tourism Authority report from this past April showed hotel occupancy down by 69% and a decrease in revenue per available room of nearly 95% compared to the same time last year. Thus, the concomitant impact on our state's travel industry has been significant.
The March trans-Pacific quarantine measure was followed, on April 1, by a similar interisland travel quarantine for travel between all five of our counties. The goal was to reduce the speed and scale of the disease's spread within the state. The interisland quarantine was lifted initially on June 16, when the state's daily infection rates were consistently low and it was reasonably safe to reduce the hardship on residents with friends and families on other islands.
But when Oahu — our most populous county — faced a surge of infections in August, a limited interisland quarantine was reinstituted, albeit in a modified form: All travelers must quarantine, except if flying into Oahu from a neighbor island.
As has been the case in most states, our emergency mitigation measures have faced legal challenges. The 14-day travel quarantine is no exception. But because we carefully considered the constitutional implications of our pandemic response measures at the outset, we have successfully defended the 14-day travel quarantine.
As U.S. District Judge Jill Otake of the U.S. District Court for the District of Hawaii noted in her order denying an injunction request, these measures "have a real or substantial relation to the public health crisis caused by the COVID-19 pandemic."[1] This ruling, and others that followed, have validated the state's good faith efforts to craft flexible, science-based measures to reduce the transmission of this disease.
Even as the travel quarantine has remained in place since March, the state has worked to develop alternatives for situations where safety measures can be enforced. For example, our universities developed a set of protocols that allowed them to welcome back out-of-state students who agreed to preflight testing or post-flight testing.
Testing, combined with strict monitoring, reduced the risk of transmission and allowed students to attend official school events during the 14-day travel quarantine. As more testing options are available now than when this emergency was declared in March, the state has developed a preflight testing protocol that can be offered to all trans-Pacific travelers. It launched on Oct. 15.
In the meantime, the state has encouraged our counties to develop a resort quarantine option to allow travelers to move around a geographically defined area at one of Hawaii's many resorts during their 14-day travel quarantine. In exchange for this alternative to quarantine, travelers agree to monitoring of their movements.
Our legal team has worked with the counties to identify the policies, procedures and safeguards necessary for this to happen safely for the traveler, the resort employees and the community at large. Kauai was the first county to have something in place, with a launch date of Oct. 1.
As scientific knowledge of this disease improves and we gain more experience managing travel-related processes, we continue to fine tune and improve our measures. Hawaii recognizes that travel might change forever, as it did after 9/11, and our department continues to work with our state health and transportation experts to develop permanent systems for tracking disease prevalence.
The original travel measures started with paper forms and orders of quarantine, which required significant labor to scan for distribution to local police departments responsible for enforcement. On Sept. 1, however, we transitioned to a digital state of Hawaii Health and Travel form, which will allow for symptom screening, better enforcement of the 14-day travel quarantine and more robust contact tracing measures in the event of illness.
COVID-19 continues its surges and ebbs throughout the world, and the coming winter threatens additional spread as people spend more time indoors and in close contact with others. As we have done from the onset of this emergency, the state of Hawaii continues to focus on science and data to design its emergency measures, including those related to travel.
All measures are subject to rigorous legal analysis by our department, and because of this, we play an important role in defining the contours of the debate so that the policies imposed are constitutional. And while the policymakers may not always agree on specific details — including, for example, what type of COVID-19 tests to allow or how many tests to require, or when the tests should be administered — our state can be confident that these policies sit within a solid legal framework.
This is especially important as the success of the travel mitigation measures has had significant economic consequences, which must be balanced against the goal of reducing the spread of COVID-19. An extended period of time of severe economic dislocation could devastate our community in terms of joblessness, homelessness and attendant social ills.
Thus, we — along with other state officials, our sister state agencies and the many who have joined forces to help us through this challenging time — will continue to do our part by engaging in rigorous, comprehensive legal work and sensible enforcement efforts, as we adjust and readjust to do right by our people during this pandemic.
Clare E. Connors is the attorney general of Hawaii.
The opinions expressed are those of the author and do not necessarily reflect the views of Portfolio Media Inc. or any of its respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Carmichael v. Ige
, No. CV 20-00273 JAO-WRP, 2020 WL 3630738, at *6 (D. Haw. July 2, 2020).For a reprint of this article, please contact reprints@law360.com.
