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 is easily spread from person to person. COVID-19 spreads primarily through respiratory aerosol and droplets, 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.
On March 10, 2020, MDHHS identified the first two presumptive-positive cases of COVID-19 in Michigan. As of Jan 7, 2022, Michigan has seen a total of 1,636,611 confirmed cases and 27,822 confirmed deaths attributable to COVID-19. Through December 31, 2021, the seven-day average rates in the State of Michigan were 1,139.3 cases per million people and 7.3 daily deaths per million people. As of January 5, 2022, the weekly average positivity rate was 32.0%, and the current number of COVID-19 cases detected per day in Michigan is above 13,000. As of January 7, 2022, there are 4,412 Michiganders hospitalized with COVID-19. As of January 7, 2022, 63.8% of Michigan residents have received at least one dose of a COVID-19 vaccine, and 68.6% of Michigan Department of Corrections ("MDOC") inmates are fully vaccinated.
The Omicron variant of COVID-19, first reported by South Africa on November 24, 2021, spreads much more rapidly than prior variants of COVID-19. Omicron is more readily able to evade immunity from both vaccination and infection, significantly increasing the number of individuals who may experience severe illness, hospitalization, and death for persons who are inadequately immunized. This makes delivery of additional doses of the COVID-19 vaccines even more important. Omicron was first detected in Michigan on December 1, 2021. Omicron reached Michigan during a period of high case counts and stretched hospital resources driven by the Delta variant. In addition to COVID-19, Michigan is experiencing an uptick in cases of other respiratory illnesses, including influenza and respiratory syncytial virus. The confluence of these sharp increases in respiratory infections is putting significant strain on Michigan's emergency and hospital systems.
Recent estimates suggest that roughly half of 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 last for months and be disabling. In some cases, these long-term symptoms can 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.
COVID-19 can spread quickly in crowded settings, especially congregate living settings and indoor settings where physical distancing cannot be maintained, such as prisons. COVID-19 outbreaks in prisons not only create severe risks for inmates and staff, but also create a significant risk of COVID-19 spread among the broader community. It is therefore necessary to require that testing continue to be performed in prisons and that testing be required prior to entering the facility as a new employee or transferred inmate.
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 further conclude that control of the epidemic is necessary to protect the public health and that it is necessary to 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:
This Order takes effect immediately and remains in effect until rescinded. The order entitled "Requirements for Prisons," dated June 25, 2021, is rescinded.
Date: January 13, 2022
Elizabeth Hertel, Director
Michigan Department of Health and Human Services