Michigan Agency Steps Up Mask Mandate and Other Requirements to Fill Void Created by Nullification of COVID-19 Executive Orders

The Michigan Department of Health and Human Services (DHHS) issued an emergency order prohibiting certain gatherings and mandating masks, partially filling the gap created by the Michigan Supreme Court’s October 2, 2020 opinion nullifying the governor’s post-April 30, 2020 COVID-19 executive orders. Issued by the Department’s director, the order states, “[i]n the absence of the Governor’s emergency orders, it is necessary to issue orders under the Public Health Code,” noting that the Department has “special powers, dating back a century” to address public health threats like COVID-19.

The DHHS issued the order pursuant to Michigan’s Public Health Code’s regulations on epidemics, and grants the Department’s director authority to issue emergency orders “to protect the public health” including “prohibit[ing] the gathering of people for any purpose” and “establish[ing] procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.”1

Based on “the advice of scientific and medical experts employed by” the Department, the order establishes limitations on various indoor and outdoor “gatherings” defined as “any occurrence where persons from multiple households are present in a shared space in a group of two or more.” For example, indoor gatherings of 10 people at a residence and non-residential venues are permitted, with face coverings strongly recommended for residential gatherings but mandated for non-residential gatherings. Likewise, outdoor gatherings of 100 people are allowed at residential and non-residential settings under the same recommendation and restriction. There are exceptions to the gathering limitations for voting and election-related activities; training of law enforcement, correctional, medical, or first responder personnel; organized sports held in accordance with the order; and students in a classroom or daycare setting.

The order further requires the wearing of face coverings for indoor gatherings at businesses, government offices, schools, and “other operations.” The exceptions to the face covering requirements mirror those in the governor’s mask-related executive orders, such as children younger than five, individuals who cannot medically tolerate a face covering, and when eating or drinking while seated at a food service establishment. Unlike the governor’s prior executive orders, the DHHS order does not provide an exemption from the mask requirement in circumstances where there is a “gathering,” even if the participants are maintaining social distancing of six feet.

The order’s restrictions on food service establishments, such as closing indoor common areas where people can congregate and prohibiting indoor gatherings where alcoholic beverages are sold for consumption onsite, unless parties are socially distanced, mirror the governor’s prior orders. The same is true for the order’s regulations on organized sports.

The order is effective immediately and remains in effect through October 30, 2020. Violations of the order is a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200.00 or both. Law enforcement officers can enforce the order or coordinate with other entities on enforcement.

See Footnotes

​1 MCL 333.2253(1).

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.