In an effort to stay open but prevent the spread of the novel coronavirus, Pitkin County announced this week that it will be adding a new public health requirement for visitors.
Starting Dec. 14, anyone who is visiting the county and planning to stay overnight will need to take a COVID-19 test 72 hours before arriving, get a negative result and then sign an affidavit saying they’ve done so.
If they do not, the visitor will be required to quarantine for 14 days or until they obtain a negative test result.
Anyone who is caught in the county staying overnight without the affidavit could be subject to a $5,000 fine. There are exceptions, however, including those who work in the area or go to school there, patients receiving medical treatment, military personnel required to be there and people who live in some of the surrounding counties.
The decision to require a negative COVID-19 test comes as the county’s coronavirus numbers continue to rise.
“We have a really seriously skyrocketing incidents of COVID right now,” said Jordana Sabella, the county’s interim public health director.
Currently, Pitkin County is on Level Orange status on the Colorado Department of Public Health and Environment’s dial. It’s doing better than counties like Denver and Adams, but worse than other areas like Gunnison and Saguache.
County officials say they had asked the governor to make this a statewide order but decided to move forward on their own when things weren’t changing on a statewide level.
“There are a number of states that are doing this program. We believe we are the only county that is doing it on its own in the U.S. right now,” said Jon Peacock, the Pitkin County manager.
The officials also said that in their planning of this new health order, they have not received any pushback from the state.
In a statement to Denver7, the Governor’s office said, “It’s important to remember that local jurisdictions have always had the ability to enact more restrictive policies and we need to trust that they will do what is needed to protect the health and safety of their residents.”
The county hopes the move will limit the spread of the virus while allowing people to visit during ski season.
During a news conference Friday, county officials told reporters they have a lot of confidence in visitors and the community to do the right thing.
“Our efforts to put together this traveler affidavit program is to continue to try to make Pitkin County as safe as possible for our residents,” Sabella said. “We think that by doing this we’re going to be attracting the kind of folks that align with our community values of wanting to be as protective as possible.”
County officials admitted that enforcing the new public health order will be difficult and that they will not be requiring people to show proof that they took the necessary precautions when they enter the area.
However, the visitor may be asked to provide proof of their signed affidavit if there is a spot check or if the public health department is investigating an outbreak.
“At the end of the day, our ability to return to more normal levels of activity is going to be through our success in public health. We think this is an important tool,” Peacock said.
Lots of questions, little time
Tucked into the snowy scenery Aspen has to offer, the Snow Queen Lodge is a quaint getaway for those looking for a more personal experience.
Like many, the Victorian lodge has been trying to adapt to all of the changes and challenges the COVID-19 pandemic has created.
Revenue has dropped quite a bit during the pandemic, but the lodge is getting by with PPP loans and loyal customers.
“If, God forbid, something would’ve happened and we would’ve needed a big upgrade or repair or something bad would’ve happened to us this year, then we really would’ve been in trouble,” said Hunter Waldrop, the manager and keeper of the lodge.
Waldrop found out about the changing public health order this week from the local newspaper and says, like many, he has a lot of questions about what this will mean for the lodge.
He’s worried it could be left to hotels to check people’s affidavits.
“Boy that will be a weird conversation to have. We’re going to have to calm somebody down who may be upset about that,” Waldrop said.
During Friday’s news conference, however, the county said it will not be asking local businesses like hotels to enforce the rules or check to make sure that the visitors have affidavits.
Waldrop is also worried that not all visitors will be able to get testing in enough time to visit and will either cancel their trips or show up without it. People canceling their reservations could also cost hotels money.
“Hopefully lodges don’t lose too much money on like, credit card fees for having to refund people,” he said.
The lodging groups will have a meeting with the county on Dec. 9 to discuss the details of the new public health order and their role in it.
Already though, Waldrop says he’s going to start calling anyone who has a reservation to let them know about the new health requirements so that the guests can start planning for it.
A solid strategy
The idea of requiring testing in order to enter an area is something other areas across the country, such as the U.S. Virgin Islands, Hawaii, Maine and Connecticut, have been doing.
However, while there is anecdotal evidence, there is little data at the moment to prove that a testing requirement actually helps lower COVID-19 numbers or prevents the spread.
Still, Dr. Glen Mays, a professor of health policy at the Colorado School of Public Health, says this strategy could work for Pitkin County.
“It’s got a sound logic behind it because the main goal is to help people who may have the virus,” Mays said.
States like Colorado also have strong home rule for counties to be able to issue their own requirements and enforce them.
Mays recognizes, though, that enforcement will be difficult and that if people want to try to get around the rules, they will likely be able to find a way.
“The real force behind this kind of public health order is really the sentimental effect of kind of creating the expectation,” he said.
One of the reasons he believes Pitkin County will be able to make this idea work is because it has greatly expanded its testing capacity in recent months. For larger areas or those with more limited testing capabilities, he’s not as certain that this idea would be feasible.
“You’ve got to have the ability to test if you’re going to really put this order into effect,” Mays said. “This kind of order wouldn’t be possible in a place that has more constrained capacity.”
A historical precedent
Over the history of the country, there is a historical precedent for states requiring 14-day quarantines, such as during the Spanish Flu.
One of the most important Supreme Court rulings on the use of quarantines dates back to 1902 in a case called Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health.
In that instance, the justices ruled that quarantines fall under state power.
“It’s quite clear in my opinion that 14-day quarantines are within the power of states,” said Craig Konnoth, an associate professor of law at the University of Colorado school of law in Boulder. “What’s interesting about this is that we see tests being used as an alternative to a 14-day quarantine. That hasn’t really been, no pun intended, tested in the courts yet, so it will be interesting to see how that plays out.”
If a lawsuit is brought up and the courts are asked to take a closer look at Pitkin County’s public health order, Konnoth says the judge will consider a few things.
First, the court would need to determine whether there is, in fact, a public health emergency. Second, the court would look at whether the measure makes sense. Third, the court would consider where there is an effective, less restrictive health measure.
In this instance, Konnoth says he’s not sure that a 14-day quarantine would be considered a less restrictive alternative.
Beyond that, the less discriminatory the public health order is, the more likely it is to be upheld. Konnoth believes that if the health order applies to people living in Colorado as well as from other states as Pitkin County’s does, it will stand a better chance of being upheld in the courts.
“The more evenhanded from a public health perspective the restriction is, the surer (sic) the constitutional ground is on which it stands,” he said.
During the Friday news conference, Pitkin County also announced that the rules would apply to people who live elsewhere but have second homes in the area.
Will other counties follow?
Denver7 reached out to surrounding counties to see whether they are considering a similar COVID-19 testing requirement. Mesa, Eagle, Gunnison, Delta and Summit counties responded saying there are no plans in their immediate future to require COVID-19 testing to enter the area.
Still, while Pitkin County is the first to implement a health restriction of this nature in the state, depending on how things go and how well the order is received, it might not be the last.
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