The newly issued order calls for restricting gathering sizes, requiring face coverings in public spaces – and follows a different law than was challenged last week.
The following news release was issued this afternoon and can be found at this link.
MDHHS issues Emergency Order designed to protect the health and safety of all Michiganders
Directive restricts gatherings, requires face coverings, limits bars and other venues
FOR IMMEDIATE RELEASE
October 5, 2020
LANSING, Mich. – Michigan Department of Health and Human Services (MDHHS) Director Robert Gordon today issued an Emergency Order under MCL 333.2253 restricting gathering sizes, requiring face coverings in public spaces and places limitations on bars and other venues.
The order follows the Michigan Supreme Court decision on Friday, Oct 2, that invalidated COVID-19 related executive orders. Today’s order relies on authorities that were first enacted after the Spanish Flu of 1918, and that were not at issue in the Michigan Supreme Court’s decision.
“When it comes to fighting COVID-19, we are all in this together. We need Michiganders everywhere to do their part by wearing masks and practicing safe physical distancing so we can keep our schools and small businesses open and protect the brave men and women serving on the front lines of this crisis,” said Gov. Gretchen Whitmer. “The epidemic order that Director Gordon issued today is an important step to protect Michiganders across the state from the spread of COVID-19. Let’s all mask up and stay safe.
Under MCL 333.2253, if the MDHHS director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Gordon shares more about the reasoning behind the order in a recent column.
Violations of this order are punishable by a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200, or both. Violations of this order are also punishable by a civil fine of fine of up to $1,000.
“Michigan was hit hard by COVID-19 early in the pandemic,” said Gordon. “Strict preventive measures and the cooperation of Michiganders drove those numbers down dramatically, greatly reducing the loss of life. As we head into flu season, this order is necessary to protect vulnerable individuals, ensure the health care system can provide care for all health issues, keep schools open, and maintain economic recovery.”
Today’s orders largely reinstate, under the department’s authority, three major aspects of prior emergency orders:
Requirements to wear masks at indoor and outdoor gatherings: The order requires individuals to wear masks when in gatherings, defined as any occurrence where persons from multiple households are present in a shared space in a group of two or more, and requires businesses and government offices to enforce those requirements for gatherings on their premises. The order also requires the wearing of masks at schools, except for in Michigan Economic Recovery Council Region 6.
Limitations on the size of gatherings: The order reinstates limitations on gathering sizes that mirror the requirements that Governor Whitmer had previously put in place. These include indoor gatherings of more than 10 and up to 500 people occurring at a non-residential venue are permitted within the following limits:
In venues with fixed seating, limit attendance to 20% of normal capacity. However, gatherings up to 25% of normal capacity are permitted in Michigan Economic Recovery Council Region 6.
In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room. However, gatherings of up to 25 persons per 1,000 square feet are permitted in Michigan Economic Recovery Council Region 6.
Non-residential outdoor gatherings of between 100 and 1,000 persons at venues with fixed seating are permitted at up to 30% of normal capacity and at 30 persons per 1,000 square feet at venues without fixed seating.
Limitations on certain establishments: Although the order does not close bars, it requires them to close indoor common areas where people can congregate, dance or otherwise mingle. Indoor gatherings are prohibited anywhere alcoholic beverages are sold except for table services where parties are separated from one another by at least six feet.
In addition, athletes training or practicing for or competing in an organized sport must wear a facial covering, except when swimming, or consistently maintain six feet of social distance.
Pursuant to MCL 333.2235(1), local health departments are authorized to carry out and enforce the terms of this order. Law enforcement officers, as defined in the Michigan Commission on Law Enforcement Standards Act, 1965 Public Act 203, MCL 28.602(f), are deemed to be “department representatives” for purposes of enforcing this order, and are specifically authorized to investigate potential violations of this order. They may coordinate as necessary with the appropriate regulatory entity and enforce this order within their jurisdiction.
This order is effective immediately and remains in effect through Friday, Oct. 30. Individuals with suggestions and concerns are invited to submit comments via email to [email protected]
Information around this outbreak is changing rapidly. The latest information is available at Michigan.gov/Coronavirus and CDC.gov/Coronavirus.
The following statement also was issued late today, and can be found at this link.
An order that can save lives from COVID-19
By Robert Gordon, Director
Michigan Department of Health and Human Services
Today the Michigan Department of Health and Human Services (MDHHS) is issuing an epidemic order to sustain rules that have protected Michiganders’ lives for months: requiring masks, limiting gatherings, and safeguarding nursing homes. A divided Michigan Supreme Court struck down these requirements on Friday. Our order today flows from a legal authority not at issue in Friday’s case. It is important we stay the course we’ve been on. When it comes to defeating COVID-19, we’re all in this together.
The science is clear: wearing masks can reduce the chance of transmitting COVID by about 70%. Even with masks, transmission is likeliest when people are within 6 feet of each other for 15 minutes, especially indoors. The failure to take proper precautions can enable the disease to spread—whether in an East Lansing bar or at the White House.
When Michigan was hard hit by the virus in March, strong orders based on science played an integral part in our effective response. Michigan initially had the third most deaths per capita in the nation. Our response included firm requirements for individuals to stay home (March 23, strengthened April 9) and to wear masks (April 24). By June, cases had fallen dramatically, but they began to grow, partly due to outbreaks linked to bars. We responded by closing bars (July 1 and 29) and strengthening the requirements around masks (July 17). The curve flattened again.
Today, Michigan has fallen to 10th for total fatalities. That ranking translates into thousands more Michiganders who are still alive. Further thousands are free from debilitating conditions that many COVID survivors face.
Now risks around COVID are rising: students are back in school, colder weather is moving us indoors, and flu season is approaching. The number of cases has been creeping up, too. We are tired of the virus, but the virus isn’t tired of us.
As in the spring, orders are still critical to make clear the shared norms that each of us must follow so all of us can stay healthy. For those of us who sometimes waver—and after seven months, that’s most of us—orders require us, as a matter of law and civic responsibility, to stay the course and protect each other.
Scientific research has repeatedly linked mandates to reductions in COVID’s spread. Case studies do too. In the spring, Louisiana was hit as hard as Michigan. They waited until mid-July to require masks. If our total fatality rate by population for COVID were the same as Louisiana, then 4,800 more Michiganders would no longer be with us. Arizona and Mississippi saw little of the virus through April. They hoped for the best. Their cumulative death rates by population are higher than ours too.
In May, in Wisconsin, another divided supreme court invalidated emergency orders much as ours did. Bars threw open their doors, and cases began a rapid rise. Now Wisconsin has some of the highest COVID rates in the country.
What happened in Wisconsin can happen in Michigan. In fact, we are seeing signs of it already in the Upper Peninsula, where counties near the Wisconsin border have experienced sharp increases in COVID.
On Friday, Governor Whitmer moved the Upper Peninsula back a stage in her reopening plan. Our state Supreme Court’s ruling invalidated that decision. MDHHS’ order today largely reinstates it. That is important not just to protect the Upper Peninsula, but also to protect the rest of the state from a repeat of the spring’s tragedies.
Today’s order is lawful under the Michigan Supreme Court’s recent decision. That decision rested on something called “the nondelegation doctrine”—a legal notion never before used to invalidate a Michigan statute, and not used to invalidate a federal statute for 85 years. Two decades ago, when I was a law clerk, the U.S. Supreme Court rejected a nondelegation challenge by an 8-1 vote in an opinion by Justice Antonin Scalia. Since then, the doctrine has become popular on the anti-government right, and a 4-3 Michigan majority has now used it to invalidate a 75-year old Michigan law. Even so, the legal authority under which I am acting is narrower, established specifically in response to the Spanish flu a century ago. Compared to the Governor’s orders, my actions are narrower too. Just as they stand up for human life, they stand up to legal scrutiny.
We won’t need these orders forever. I have asked for feedback on today’s order, and I pledge to review the specific elements by October 30. The day can’t come soon enough when a vaccine and therapeutic drugs make normal life safer again. For now, public action is critical to saving Michiganders’ lives.