Allegan County Health Department Declines Request To Rescind School Mask Order

After being asked by the Allegan County Board of Commissioners to rescind a mask order for schools to prevent the spread of COVID-19, the Allegan County Health Department has declined to do so. The order remains in place. The Allegan County Health Department has released the following:

On Aug. 18, 2021, the Allegan County Health Department issued a public health order requiring masks be worn by students inside kindergarten through sixth grade schools. We have subsequently heard from concerned residents, both pro and con, regarding the topic of masks in schools. At a Board of Commissioners’ special meeting on August 20, 2021, community members provided comment on COVID-19, the value and concerns of facial coverings, the rights of parents, and the role of government.

On August 20, 2021, the Allegan County Board of Commissioners passed a resolution requesting the Health Officer reconsider and rescind the emergency order.  On August 27, 2021, the Health Officer provided the following response to the Board:

“After careful consideration and in the best interest of protecting the public health of children K-6 grade; ACHD is not rescinding the order at this time. ACHD bases this decision on the recommendations from public health agencies including the CDC and MDHHS, and Corporation Counsel.  Not unlike other neighboring county health departments that have maintained their similar orders, data was carefully reviewed and relied upon to form the basis of issuing and maintaining this order.  ACHD is amending the order to include a more distinct data related timeline which will result in the order to be in effect until Allegan County remains in the low transmission level for 7 consecutive days, or until six weeks past the date the COVID-19 vaccine is authorized and available to persons age five years through age eleven.”

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The Allegan County Board of Commissioners has been working to further understand the authority of the Allegan County Health Officer. Our Corporation Counsel, Miller Johnson, provided an opinion concluding that neither the Allegan County Board of Commissioners nor the County Administrator have the authority to intervene in the Health Officer’s performance of statutory duties under Michigan’s Public Health Code.

The Michigan Public Health Code was established by the Michigan State Legislature in 1978 for the protection and promotion of the public health. Specifically, the law states that health officers “may take actions and make determinations necessary or appropriate to carry out the local health department’s functions under this part or functions delegated under this part and to protect the public health and prevent disease.” [MCL333.2428(2)].

Under the statutory duties and authority established by this law, the Health Department, issued a local public health order requiring masks be worn in kindergarten through sixth grade educational settings. When the public health order was issued on August 18, all epidemiologic measures of COVID-19 in our community were trending in the wrong direction and our CDC level of community transmission continues to be high.  Additionally, regional COVID-19 hospitalizations were trending and continue to trend in the wrong direction.

Therefore, Health Department determined a school mask order was necessary to protect access to in-person learning for those students who do not yet have access to the vaccine, to slow the rate of transmission, and to keep students and teachers healthy.

Some members of the community have called on the Allegan County Board of Commissioners to rescind the public health order, remove our local health officer, or defund the health department. However, the Board of Commissioners is prohibited by State law from taking any of these actions. Legal review further concluded that:

  • The Board does not have authority over local public health orders
  • The Board may not remove a health officer for adopting a mask mandate
  • The County Administration and Commissioners may face legal action if the Commissioners interfere in the public health order or remove the health director for issuing the public health order
  • The Board of Commissioners may not defund the health department to change or negate a public health order
  • If the Board defunds the health department, the State may take over the health department
  • If a local health department fails to meet state requirements, the Michigan Department of Health and Human Services has the power to resume those functions itself, removing them from the local health department. Those requirements include:
    • Prevention and control of diseases
    • Prevention and control of health problems of particularly vulnerable population groups

Further, public health orders issued by local public health officers are not personal orders of the individual. Rather, the orders are issued in the Health Officer’s official capacity and remain in effect even after the individual leaves the office.

A frequently-asked-questions document is attached. It provides additional information on these findings.

In conclusion, the local public health order requiring masks be worn in K – 6th grade schools has the full force of law and the Allegan County Board of Commissioners has no legal authority to intervene in this action. Residents are encouraged to voice their concerns over the authorities granted to local public health officers under the Michigan Public Health Code to state lawmakers.

We appreciate all the comments we have received on this topic, and we trust this statement clarifies the role of the Allegan County Board of Commissioners and County Administration. We encourage everyone to remain steadfast in helping to keep our community healthy and in supporting the dedicated Allegan County Health Department team that has worked diligently over the past 20 months to do the same.