The Power of Michigan Local Health Officials to Combat a Pandemic Disease

This week, given the extreme circumstances surrounding the recent COVID-19 pandemic, we're deviating from our usual ILE content and leaning on the expertise of our in-house law fellow, Samantha Zinnes, to talk about the power local government has in dealing with this type of situation.  

The Power of Michigan Local Health Officials to Combat a Pandemic Disease

By Samantha Zinnes, Esq.

Early last week, Governor Gretchen Whitmer declared a state of emergency as the first confirmed cases of COVID-19, an illness caused by coronavirus, were reported in Michigan. At the same time, the World Health Organization (WHO) officially declared this coronavirus a pandemic. A disease that is a pandemic or epidemic does not necessarily refer to the severity of the actual disease or the complications it causes. Rather, it more has to do with where, when, and how the disease has spread. An epidemic is defined as a clear increase in the normal amount of cases occurring in a community or region, whereas a pandemic is defined as an epidemic that is happening around the world as opposed to a concentrated area.

Pandemic diseases, like COVID-19, impact a large number of people. The function of government, at the most basic level, is to provide for the public health and safety of its people. Strip everything else away from government and those duties will still remain. To combat a pandemic like this one, a living organism that has brought much of the world to a standstill, federal, state, and local government officials must not only help as many people as possible, especially those more likely to experience severe symptoms and complications, but must simultaneously take serious steps to curb the spread of the disease. Treating patients as they appear will not halt the spread of a pandemic disease like COVID-19, more proactive steps need to be taken to prevent future spread.

For the elderly and immuno-compromised individuals, the rapid way this virus has spread leaves them especially vulnerable to contract it and develop severe symptoms. COVID-19 has proven to be very contagious and the people more susceptible to developing severe symptoms need the majority of otherwise-healthy people to stay informed and help contain the spread of the virus by monitoring their own health and taking appropriate steps to keep others from contracting it. Health organizations and experts around the world are getting the information to the public on who is most at risk, what to expect, and how to protect yourself and your loved ones.

Recently, local health officials all over the country have taken steps to try to mitigate the spread of COVID-19. One way is social distancing.[1] Many public events have been canceled and all Michigan public universities have switched to teaching classes online for at least the rest of the month. Sporting events all over the country are also canceled. For some of these cancellations, it is the event holders who are voluntarily canceling social gatherings to help mitigate the spread of coronavirus at large social gatherings. For other events and gatherings, state and local health officials have intervened and canceled events, closed schools and public areas, and issued emergency health orders.

The amount of power and authority to issue emergency orders and cancel public events varies on a state-by-state basis. While the Director of the Michigan Department of Community Health has jurisdiction over the entire state, local government health officials have “most of the powers granted to the Director to respond to public health emergencies within the area served by the local health department.”[2] Michigan local health officials have a great deal of authority to issue health orders, limit people’s movement, quarantine and isolate people, and cancel public gatherings of any kind if these things are being done to halt the spread of an epidemic. Per Michigan’s Public Health Code (Act 368 of 1978) § 2453:

If a local health officer determines that control of an epidemic is necessary to protect the public health, the local health officer may issue an emergency order to prohibit the gathering of people for any purpose and may establish procedures to be followed by persons, including a local governmental entity, 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.

When there is an epidemic, a local official can issue an emergency order if it is necessary to decrease the spread of an epidemic and protect public health. The public health official can cancel events like rallies, sporting events, shows, etc. The Director of a local health department can also issue an order called an “imminent danger order.”[3] Once the Director determines that an imminent danger [4] to the health of the public exists, the Director informs individuals that may be impacted and issues the order. Issuing the order is an important step because the local official’s instructions (instructions to combat a health emergency) are enforced and non-compliance with those instructions can result in fines and other legal consequences.

Per the statute, a local health department “may provide for the involuntary detention and treatment of individuals with hazardous communicable disease.” To involuntarily detain an individual, the least restrictive manner to ensure the public health must be used. The individual has a right to notice, counsel, a hearing, and there has to be a rational basis for detaining this person. The statute also grants local health officials to preemptively prohibit public gatherings of people and require mass immunization. Violating these orders from a local health official is a misdemeanor, per MCL § 333.2443.[5]

That said, not all emergency medical personnel have the power to involuntarily detain individuals nor do all have the power to issue these emergency health orders. According to a 2003 Attorney General Opinion:

The Public Health Code does not authorize licensed emergency medical services personnel to detain an individual suspected of carrying a communicable disease, such as severe acute respiratory syndrome or smallpox. Only a local health department and the Michigan Department of Community Health (MDCH) are authorized to seek an order of the circuit court to detain individuals suspected of carrying communicable diseases, and except in the case of an emergency, such an order is subject to notice and opportunity for a hearing.[6]

In the midst of the 2003 pandemic of severe acute repertory syndrome, or SARS, then-State Representative Gretchen Whitmer asked then-Attorney General, Mike Cox, to clarify what kind of authority emergency medical personnel and firefighting officials had to detain individuals suspected of carrying communicable diseases.[7] She also asked whether the commanding officer of a local fire department or a uniformed firefighter, “acting under the orders and directions of the commanding officer, have authority to detain an individual suspected of carrying a communicable disease, such as severe acute respiratory syndrome [SARS] or smallpox,” for how long, and with or without a court order. Because “the Public Health Code only authorizes local health departments and the MDCH to seek court orders to detain individuals suspected of carrying communicable diseases,” AG Cox opined that the commanding officer of a fire department or a firefighter acting under their commanding officers orders cannot detain an individual such as the one described.

[1] Social distancing refers to any measures to reduce human contact, like canceling events, working from home, or ordering food rather than going to the grocery store. https://www.vox.com/future-perfect/2020/2/28/21156128/coronavirus-prepare-outbreak-covid19-health

[2] Presentation by Denise Chrysler, Director of the Office of Legal Affairs at the Michigan Department of Community Health, “Authority and Actions Under the Public Health Code to Prevent and Control the Spread of Disease,” at https://www.michigan.gov/documents/PubHealthAutPPOct10_153949_7.pdf

[3] MCL § 333.2451

[4] MCL § 333.2451(3)(a): "'Imminent danger' means a condition or practice which could reasonably be expected to cause death, disease, or serious physical harm immediately or before the imminence of the danger can be eliminated through enforcement procedures otherwise provided."

[5] MCL § 2443: "A person who violates a regulation of a local health department or order of a local health officer under this act is guilty of a misdemeanor punishable by imprisonment for not more than 6 months or a fine of not more than $200.00, or both."

[6] Diseases: Emergency Medical Personnel: Firefighters And Fire Departments: Public Health Code, Mich. Attorney Gen. Opinion 25 No. 7141 (2003). Requested by: Representative Gretchen Whitmer.

[7] AG Opinion 25 No. 7141 (2003): "You first ask whether licensed emergency medical services personnel have authority to detain an individual suspected of carrying a communicable disease, such as severe acute respiratory syndrome (SARS) or smallpox, and if so, how long such an individual may be detained without a court order."