School mask mandates in Wayne and Oakland counties remain in place, but similar orders have been rescinded for schools in six other Michigan counties as local health officers worry that language in the state budget could cost them important funding or lead to a court battle.
Language in the budget, which went into effect Friday, requires the state health department to withhold funding for essential services to local health departments that have a public health order in place on Oct. 1 that includes a mask mandate to fight COVID.
The move to rescind the orders in these counties comes in the midst of a politically polarizing debate in Michigan — and across the country — about whether students and staff should have to wear masks in schools. The issue has been debated vigorously in many school districts and health departments, and has led to protests and threats against some local health officers. In Michigan now, there are 11 health departments, covering 15 counties, that continue to have school mask mandates.
The health departments that got rid of their orders cover Allegan, Barry, Berrien, Dickinson, Eaton, and Iron counties.
The Berrien County Health Department, in a statement Thursday, said it would face the “loss of nearly $1.5 million in budget,” if it didn’t rescind the order it issued in August.
The funding covers a number of essential local health services, including vaccinations, restaurant inspections, and septic system regulation, said Norm Hess, executive director of the Michigan Association for Local Public Health.
“That would be a whopping big hit for these health departments,” Hess said.
Gov. Gretchen Whitmer, when signing the budget on Wednesday, sought to address the concerns about the language, saying it is unconstitutional and unenforceable. In addition to the language calling for funding to be withheld, the budget also restricts state and local health departments from issuing mask mandates for anyone under the age of 18.
“The legislature cannot unwind the Public Health Code in a budget bill or un-appropriate funds because they take issue with the actions of local health departments,” Whitmer said in a letter to the lawmakers.
“Budget boilerplate that purports to prohibit state or local health officials from issuing mask and quarantine orders or to penalize local health departments for issuing their powers under the Public Health Code violates the Michigan Constitution. … I will not allow unconstitutional budget language to take effect.”
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Her words, though, were not enough for the health officials that rescinded their orders. Hess said. Different attorneys have had different interpretations of the language.
“So, our advice to local health departments is to listen to your own corporate counsel. The governor’s statement was very reassuring to most and we’re glad she did that. In the end, we believe this will all pass away and the money will come out and everyone will be whole.”
But, Hess said, there is still a chance that the issue of the enforceability of the legislature’s language “could end up being decided by a court.” And for some local health officials, “that risk is just too much for them at this time.”
In a statement, officials with the Berrien County health department said they are being forced to take the action.
“When this unconstitutional language is deemed as illegal in a court of law, and if the data still supports the need for a public health order requiring masks in pre-K through grade 12 settings because of ongoing high transmission, the Board of Health fully supports the local health officer to reinstate this order to keep students and teachers in the classroom,” said Peg Kohring, chair of the Berrien County Board of Health.
The pressure is now on local school districts to decide whether to maintain a mask order or make the face coverings optional.
“None of the health departments who rescinded the mask mandates wanted to,” Hess said. They absolutely know what this does to schools.”