COVID-19: Emergency Public Health Measures Enacted

Last Friday, 20th March, 2020, the President signed into law emergency legislation in response to the evolving Covid-19 crisis. The Act gives the Government wide ranging powers to introduce Regulations in the area of public health aimed at slowing down the virus. It also puts on a statutory footing the new Covid-19 social welfare payments that have been announced in recent days. Without renewal by the Oireachtas, the public health powers will expire on 9th November 2020, and the social welfare measures will expire on 9th May 2020.

This new legislation gives a number of wide ranging powers to the Minister for Health including the power to take such measures as he considers necessary to prevent, limit, minimise or slow the spread of Covid-19. However, these emergency powers are not unqualified and will be subject to the Constitution. Similarly, regulations made under the legislation must represent "the mere giving effect to the principles and policies of the Act" and will also be subject to constitutional scrutiny. So while this is emergency legislation, it is not as sweeping as equivalent emergency legislation in, for example, the United States such as the US Defence Production Act, 1950. In the normal course, we would not expect to see a broad exercise of these powers.

Public Health Measures  

While the Heath Act 1974 and the Infectious Diseases Regulations 1981 already provide extensive powers designed to control the spread of infectious diseases – the Act strengthens those existing powers and also provides the Minister for Health and health authorities with new and wide-ranging powers.

1. Prevent, limit, minimise and slow spread of Covid-19 in and outside the State

  • The Government may restrict travel to and from the State, and travel to and from or within specified geographical locations (which have been designated as 'affected areas'). Restrictions may also be imposed on persons working in or visiting locations, and those restrictions may include requiring people to remain in their homes or other specified places.

2. Prohibit or restrict the holding of certain events

  • The Government may prohibit events that could reasonably be considered to pose a risk of Covid-19 infection. "Event" is defined very broadly and includes events that are cultural, recreational, sporting, commercial, work, social, community, educational and religious. The Act enumerates a non-exhaustive list of factors that will be considered in determining whether a given event will be prohibited or restricted. The Minister will consider factors such as whether the nature, format, location or environment of the event, or the numbers of people likely to attend are such as could reasonably be considered to pose a risk of infection with Covid-19 to people attending the event, and the safeguards required to be put in place to minimise that risk.
  • The Government may direct that steps are taken to safeguard and minimize the risk of infection – such directions may be issued to event organisers, owners/occupiers of a premises or any other place, and managers of schools, crèches or other childcare facilities, universities or other educational institutions. Such steps may include the temporary closure of such facilities. A person who contravenes a Regulation or wilfully obstructs it shall be liable to criminal penalties. 

3. Detain people who are suspected to be possible sources of Covid-19 infection

  • The Act empowers medical professionals to order the detention or isolation in a hospital or other facility of a person who is a potential source of infection and a potential risk to public health. In practice, this power is likely to only be exercised where the person cannot be effectively isolated or refuses or appears unlikely to remain in his/her home. The person detained is entitled to have the opinion reviewed by another medical officer on grounds that he/she is not a potential source of infection. 

4. Creation of criminal offences

  • The Act provides that the breach of a Regulation that has been designated as penal under the Act shall be a criminal office. It also creates ancillary offences for impeding the activity of relevant persons (who may include medical officers, customs officers, HSE appointees, officers of the Minister for Justice and Equality, and authorised officers), and failing to provide/providing false information to such a person. It gives An Garda Siochána powers to direct compliance with the Regulations, and to arrest without warrant, a person who, they have reasonable cause to believe is committing an offence under the legislation.
  • The Act provides for the criminal liability of bodies corporate, and individual criminal liablility for directors, managers, secretaries, managing members and other officers of bodies corporate, if it can be proven that the offence of the body corporate was committed with the consent, connivance or wilful neglect of those individuals.

5. Social Welfare Provisions

  • The Act provides for a variety of enhanced income supports that will be introduced for people who are diagnosed with Covid-19 or required to self-isolate.

Illness benefit will be available from the first day of illness, and where applicable, will be backdated to apply from Monday 9 March 2020. To avail of the benefit, employees must be medically certified as diagnosed with Covid-19 or a probable source of Covid-19. 

For further information please contact a member of the A&L Goodbody Litigation & Dispute Resolution team.

Date published: 27 March 2020