Gov. Gretchen Whitmer
Enhanced protections for residents and staff of long-term care facilities
during the COVID-19 pandemic
Rescission of Executive Order 2020-169
From day one, I have taken action to protect seniors from the deadly COVID-19 pandemic. Because of the inordinate risk of COVID-19 to elderly Michiganders living in congregate settings, I have issued executive orders implementing special protections for residents and employees of long-term care facilities. To ensure our nursing homes are as safe as possible, I pushed our inspectors to complete 100% of infection control surveys more than two months before the federal deadline, and they delivered. And I have worked tirelessly to procure tests and PPE to keep seniors safe, and to facilitate testing for all nursing home residents and staff, with little to no assistance from federal authorities. To protect against a possible second wave, I created the nursing home preparedness task force, which is set to produce its report August 31. Finally, my stay-home and safe-start orders have dramatically cut the infection rate and limited community spread, the single-greatest threat to the residents of long-term care facilities.
Because COVID-19 continues to threaten the health and safety of elderly Michiganders living in long-term care facilities, it is reasonable and necessary to continue the enhanced protections for residents and staff of long-term care facilities put in place back in April 2020. This order rescinds my prior executive order on this topic and extends those protections through the end of this month. The Michigan Department of Health and Human Services remains empowered to issue orders and directives to implement these protections and should carefully consider the recommendations of the Nursing Home Task Force, released August 31, 2020, in doing so.
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. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended (EMA), MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended (EPGA), MCL 10.31 et seq.
Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.
Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On August 21, 2020, the Court of Appeals ruled that the Governor’s declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs clearly fell within the scope of the Governor’s authority under the EPGA.
On August 7, 2020, I issued Executive Order 2020-165, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan. That order constituted a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. And, to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature had declined to grant an extension request, that order also constituted a state of emergency and state of disaster declaration under that act.
The Emergency Powers of the Governor Act provides a sufficient legal basis for issuing this executive order. In relevant part, it provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
Nevertheless, subject to the ongoing litigation and the possibility that current rulings may be overturned or otherwise altered on appeal, I also invoke the Emergency Management Act as a basis for executive action to combat the spread of COVID-19 and mitigate the effects of this emergency on the people of Michigan, with the intent to preserve the rights and protections provided by the EMA. The EMA vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)–(2). This executive order falls within the scope of those powers and duties, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature has not granted an extension request, they too provide a sufficient legal basis for this order.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
III. Procedures related to transfers and discharges of COVID-19-affected residents
Given under my hand and the Great Seal of the State of Michigan.