Michigan health department issues mask mandate after high court nixes Whitmer's orders

Beth LeBlanc Craig Mauger
The Detroit News

Lansing — The Michigan Department of Health and Human Services issued an order Monday to keep in place mask requirements, limitations on gatherings, and restaurant and bar restrictions in an effort to shore up COVID-19 measures upended by the state's high court.

The epidemic order, which will remain in place until Oct. 30, comes three days after Gov. Gretchen Whitmer's executive orders were struck down by the Michigan Supreme Court. The Democratic governor vowed to continue at least some of the mandates through state agencies with similar authority. 

The governor asked the Supreme Court on Monday to delay the effective date of its decision to Oct. 30, but the state health department's action Monday will ensure Whitmer's measures remain in place absent that delay.

Without the 28-day "transition," Michigan workers and their families could lose unemployment benefits, and "critical measures meant to prevent the spread of the COVID-19 virus" would "immediately lapse," the governor's office said in a press release.

"The Supreme Court decision was unwelcome, and it has forced a rapid review of multiple orders, but the department is acting today on what it sees as most urgent," said Department of Health and Human Services Director Robert Gordon. 

"We need shared action through orders as much today as we did in March and April.”

Senate Majority Leader Mike Shirkey, R-Clarklake, slammed the department's order, arguing the governor "didn't get the message" the Supreme Court sent Friday. Shirkey said Saturday that his caucus would not support a mask mandate.

"The best way to help keep our citizens safe and our state productive is for the Legislature and the governor to work together to forge a path forward," Shirkey said Monday. "The Supreme Court intends for us to work together. It’s too bad Gov. Whitmer isn’t listening.” 

House Speaker Lee Chatfield, R-Levering, expressed similar sentiments, noting his and Shirkey's openness to working with the governor. 

"Given the fact that the Supreme Court just ruled that the governor has to partner with the Legislature, I don’t think any one branch should be going it alone at this point," Chatfield said. 

In a video message posted Monday night, Whitmer laid in to Republican lawmakers, accusing them of leaving town, blaming her defeat in the Supreme Court on the House and Senate lawsuit, and noting it was a 1945 law that the Legislature approved that the high court found unconstitutional. 

The Supreme Court order was actually based on a lawsuit brought by medical centers suing over the governor's ban on non-essential procedures. And while the Supreme Court voted 4-3 to strike down the 1945 law, the court was unanimous in ruling that Whitmer used a 1976 law improperly to extend her emergency declaration without the Legislature's approval.

"I won't let partisan politics get in the way of doing what's necessary to keep people safe and save lives," Whitmer said. "To protect our most vulnerable residents and front line workers, the Department of Health and Human Services will issue epidemic orders to maintain our statewide mask mandate and limitations on gatherings."

The Supreme Court ruling Friday noted the decision created an opportunity for the Legislature and governor to work together and restore regular government function.

"It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy," Justice Stephen Markman said in the majority opinion.

Michigan's public health code allows the state health department director to issue epidemic orders that "prohibit the gathering of people for any purpose" or "establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws."

The health code, Gordon said, gives the department the ability to issue mask mandates and other rules, but he said his power to issue directives is "narrower" and "with clearer contours" than the governor's.

The state health department expects to issue further orders regarding schools, nursing homes and congregate care in the coming days, he said. 

"The numbers are creeping up," Gordon said. "We are tired of the virus, but the virus is not tired of us."

The turbulence over the Supreme Court order and fast-tracked action by state agencies come as the Upper Peninsula is experiencing a surge in COVID-19 cases. 

Chief Medical Executive Dr. Joneigh Khaldun said the case incidence in the Upper Peninsula is at 311 cases per million people per day, with a 5.1% positivity rate, far above the statewide incidence rate of 81.6 cases per million people per day with a 3.4% positivity rate. The counties with the highest rate in the U.P are Delta, Houghton, Iron and Menominee. 

In the Upper Peninsula, 11% of inpatient hospital beds are occupied by patients with COVID-19.

"Overall, I would say COVID-19 is still very present across the state and particularly in the U.P.," Khaldun said. "Cases, hospitalizations and deaths are rising."

What order says

The health department's epidemic order applies to the entire state, with exceptions for facilities and operations in Region 6, which includes Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle and Emmet counties.

The order requires masks at indoor and outdoor gatherings of businesses, schools and government offices and requires the same of all people who enter the buildings unless the person says they are exempt because they are younger than 5, are eating at a table, are exercising outdoors with 6 feet of distance or cannot medically tolerate a mask. The masks also are not required for those swimming, voting at a polling place or engaging in religious services. 

The order limits indoor gatherings to up to 10 people in a residential venue or up to 500 masked people at a non-residential venue so long as the 500-person cap doesn't exceed 20% of the venue's seating capacity. In facilities without seating, attendance is limited to 20 persons per 1,000 square feet.

Outdoor gatherings are limited to 100 people at a residence or 1,000 masked people at a non-residential venue so long as the 1,000-person cap doesn't exceed 30% seating capacity. For facilities without seating, attendance is limited to 30 people per 1,000 square feet. 

Gordon's order requires restaurants to close indoor common areas where people could "dance or otherwise mingle" and prohibit indoor gatherings where alcohol is sold unless people are seated and separated by 6 feet. 

The order does not contain capacity limits, but Gordon said the Department of Labor and Economic Opportunity may issue those in the coming days alongside workplace safety rules. 

Organized sports are allowed as long as athletes who are unable to maintain 6 feet of distance wear face coverings and the audience is limited to two guests per athlete. Indoor concessions may not be sold.

Professional sports leagues and teams may play in compliance with a COVID-19 safety plan that correlates to guidelines from the department and the federal Centers for Disease Control and Prevention. Athletes must stay 6 feet apart when possible.

Violations of the order could result in someone getting a misdemeanor charge that carries up to six months in jail or a $200 fine, or a civil fine of up to $1,000. 

"These orders have the force of law," Gordon said. "They can be enforced civilly and criminally. They can be enforced by state law enforcement or local law enforcement or sheriffs.”

The Michigan Department of Education and a teachers union, the Michigan Education Association, applauded the orders from the state health department. 

“The better we do with our mitigation strategies, the longer we will be able to keep schools open and have children attend school in person,” state Superintendent of Public Instruction Michael Rice said. “To go without masks is to risk the health of our friends, family and school staff.”

Health department authority

While the state's public health code allows for limits on gatherings and other rules to ensure "continuation of essential public health services," it does not list more specific measures such as masks, said Michael Van Beek, director of research for the Mackinac Center for Public Policy. The Midland-based center's legal arm filed the case that led to Friday's ruling. 

"It’s unclear in exactly what way they’re limited," Van Beek said of Gordon's authority. "But I’m not sure where the law allows the director to do other things, like require children to wear masks while playing sports.

"It will probably get litigated," he said, noting the opposition could come from businesses, schools, individuals or local health departments that believe looser restrictions are warranted.

Lance Gable didn't question the state department's authority to issue Monday's order, but the Wayne State University assistant professor of law said it would be better if all parties worked together to find a bipartisan solution. 

"I think there is some common ground to be found and, if there isn’t, the powers that exist are enough," Gable said. "We don’t want to squander the outcomes that we’ve already achieved here.”

The new state health department order appears to replace a July 29 order from Gordon that incorporated three of Whitmer's executive orders governing mask use, gathering and event sizes and workplace protections.

It follows similar action from health departments in Ingham, Washtenaw and Oakland counties that have issued or plan to issue separate county-wide orders that require masks, employee health screenings and restaurant capacity limits. Macomb County officials said Monday the county will not mandate masks, but it appears the state epidemic order would overrule county preference. 

Oakland County rescinded its emergency order shortly after Gordon's announcement. 

Whitmer's executive orders issued after April 30 were ruled unconstitutional by the Michigan Supreme Court, which ruled 4-3 that a 1945 law giving her emergency powers was an unconstitutional delegation of legislative powers. 

The Supreme Court was unanimous in saying a separate 1976 law limited Whitmer to a 28-day emergency without the approval of the Michigan Legislature. Lawmakers declined to extend Whitmer's emergency April 30. 

When the Supreme Court issued its decision, Whitmer said her agencies retained similar emergency authority not at issue in the ruling that would allow the agencies to issue new rules.

She also said she is committed to working with the GOP-led Legislature to develop more long-term virus prevention rules.