Michigan law imposes on the Michigan Department of Health and Human Services (MDHHS) a duty to "continually and diligently endeavor to prevent disease, prolong life, and promote the public health," and gives the Department "general supervision of the interests of the health and life of the people of this state." MCL 333.2221. MDHHS may "[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department." MCL 333.2226(d).
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. COVID-19 spreads through close human contact, even from individuals who may be asymptomatic.
In recognition of the severe, widespread harm caused by epidemics, the Legislature has granted MDHHS specific authority, dating back a century, to address threats to the public health like those posed by COVID-19. MCL 333.2253(1) provides that:
If the 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. Emergency procedures shall not be limited to this code.
See also In re Certified Questions from the United States District Court, Docket No. 161492 (Viviano, J., concurring in part and dissenting in part, at 20) ("[T]he 1919 law passed in the wake of the influenza epidemic and Governor Sleeper's actions is still the law, albeit in slightly modified form."); id. (McCormack, C.J., concurring in part and dissenting in part, at 12). Enforcing Michigan's health laws, including preventing disease, prolonging life, and promoting public health, requires limitations on gatherings and the establishment of procedures to control the spread of COVID-19. This includes limiting the number, location, size, and type of gatherings, and requiring the use of mitigation measures at gatherings as a condition of hosting such gatherings.
As of March 17, 2021 the State of Michigan had a total of 612,628 confirmed cases and 15,810 deaths. The current seven-day average has increased to 143.6 cases per million people. The case rate remains 80% lower than the case rate in mid-November peak, but is now 50% higher than mid-February low. Michigan's test positivity has also increased to 5.1% as of March 13th and is plateau or increasing in most regions as well. While metrics have decreased from all-time highs, further progress has stalled and there is concern of another spike with the presence of more infectious variants in Michigan and the United States. A high number of cases creates significant pressure on our emergency and hospital systems. Improvements in healthcare capacity have reversed and have increased 38% in the last four weeks. An average of 150 daily hospital admissions was seen in Michigan in the last week, with individuals under the age of 60 accounting for 47% of all new admissions. As of March 17th, 1,111 Michiganders were hospitalized with COVID-19 and 4.4% of all available inpatient beds were occupied by patients who had COVID-19. The state death rate was at that time 1.4 deaths per million people and there were approximately 105 weekly deaths in Michigan attributable to COVID-19. This is an 89% decrease from the second peak, which reached 13.7 deaths per million on December 10, 2020.
Yet, new and unexpected challenges continue to arise. In early December 2020, a variant of COVID-19 known as B.1.1.7 was detected in the United Kingdom. This variant is roughly 50 to 70 percent more infectious than the more common strain. On January 16, 2021, this variant was detected in Michigan. It is anticipated that the variant, if widespread in the state, would significantly increase the rate of new cases. Additionally, the first identified case of the variant known as B.1.351 - originally detected in South Africa - was identified earlier this month in Michigan. Continued progress in controlling the virus necessitates close monitoring of cases and impacts, alongside efforts to increase the rate of vaccination. Therefore, as lower COVID-19 rates permit easing of precautions, we must continue to proceed slowly and carefully.
Even where COVID-19 does not result in death, and where our emergency and hospital systems are not heavily burdened, the disease can cause great harm. Recent estimates suggest that one in ten persons who suffer from COVID-19 will experience long-term symptoms, referred to as "long COVID." These symptoms, including fatigue, shortness of breath, joint pain, depression, and headache, can be disabling. They can last for months, and in some cases, arise unexpectedly in patients who had few or no symptoms of COVID-19 at the time of diagnosis. COVID-19 has also been shown to damage the heart and kidneys. Furthermore, minority groups in Michigan have experienced a higher proportion of "long COVID." The best way to prevent these complications is to prevent transmission of COVID-19.
To date, the Food and Drug Administration has granted emergency use authorization to three vaccines to prevent COVID-19, providing a path to end the pandemic. Indeed, the State of Michigan is part of the largest mass vaccination effort in modern history and is presently working toward vaccinating at least 70% of its residents 16 and older as quickly as possible. Recently, increased access to rapid tests has redefined state and federal landscape of pandemic control. Rapid tests are both efficient and reliable. They assure access to point of care testing and confidence in immediate results.
Considering the above, and upon the advice of scientific and medical experts, I have concluded pursuant to MCL 333.2253 that the COVID-19 pandemic continues to constitute an epidemic in Michigan. I have also, subject to the grant of authority in 2020 PA 238 (signed into law on October 22, 2020), herein defined the symptoms of COVID-19 based on the latest epidemiological evidence. I further conclude that control of the epidemic is necessary to protect the public health and that it is necessary to restrict gatherings and establish procedures to be followed during the epidemic to ensure the continuation of essential public health services and enforcement of health laws. As provided in MCL 333.2253, these emergency procedures are not limited to the Public Health Code.
I therefore order that:
For purposes of this Order, terms are defined as follows:
(1) Make efforts to allow communal dining and group activities to occur for those residents who are fully recovered from a COVID-19 infection or are not in isolation or are otherwise not under observation for symptoms of COVID-19. Dining and group activities must:
(2) Inform employees and residents of the presence of a confirmed COVID-19 positive employee or resident as soon as reasonably possible, but no later than 12 hours after identification.
(3) As soon as reasonably possible, but no later than 24 hours after identification of a confirmed COVID-19 positive employee or resident:
(4) Maintain accurate and current COVID-19 records in a manner consistent with MDHHS surveillance reporting guidance.
(5) Report to MDHHS and the applicable Local Health Department(s) all presumed positive COVID-19 cases in the facility together with any additional data when required under MDHHS guidance.
(1) Contact the local health department in the facility's jurisdiction to report the presence of a confirmed COVID-19 positive employee or resident; and
(2) Support and comply with contact tracing efforts as requested.
This Order is effective immediately.
Date: March 17, 2021
Elizabeth Hertel, Director
Michigan Department of Health and Human Services