Some Michigan counties rescinding mask orders over lawsuits fears

Two more local health department in Michigan rescinded their school masking requirement Thursday despite Democratic Gov. Gretchen Whitmer saying she will not enforce Republican-written budget provisions that threaten funding for counties with COVID-19 orders.

The moves by Allegan County south of Grand Rapids and the Barry-Eaton District west of Lansing came a day after Berrien County in the state’s southwestern corner repealed a face-covering mandate. The health department for Dickinson and Iron counties in the Upper Peninsula acted last week.

The governor signed the spending plan Wednesday but said two provisions related to local mask and quarantine orders are unconstitutional and have no effect. One reason is the public health law cannot be amended with a budget bill.

"The decision to rescind the K-6 mask requirement was not made lightly and has challenged us ethically, professionally and personally," Allegan County health officer Angelique Joynes said in a statement. "However, we cannot risk our essential local public health services funding, which is around $1 million of our total budget and provides the ability for us to continue to offer those services."

Eleven health departments covering 15 counties, and nearly half the state’s residents, appeared to have stuck with mandates to reduce the spread of the virus as of late Thursday.

"Local health departments should keep their mask policies in place," Whitmer spokesman Bobby Leddy said, adding that the state will continue to send funding to the agencies. "As the governor has made clear, the budget provisions that attempt to prohibit these policies clearly violate the state constitution."

At least three departments without masking orders rescinded or planned to repeal quarantine orders — St. Clair, Branch-Hillsdale-St. Joseph and Ionia — said Norm Hess, executive director of the Michigan Association for Local Public Health.

"By and large, health officers believe that in the end this unenforceability concept will stand and that their money would be released. But for some of them, the very specter of a lawsuit coming their way is really too much risk for them," he said.

He believes the boilerplate language is inapplicable but said health departments should follow their lawyers’ advice.

"It’s very unfortunate that this language was put in there. It has caused huge disruption, which I’m sure for some was the intent. It’s very distressing that politics is once again putting public health out there on the tip of the spear," Hess said.

RELATED: Whitmer deems some Covid sections unconstitutional after state budget agreement

GOP lawmakers say parents, not the government, should decide if their kids wear face coverings to school. Whitmer has declined to reinstate a statewide mask mandate, saying it is better for decisions to be made locally to increase the odds of compliance.

The budget does not restrict schools from requiring masks. The main provision in dispute states that local health departments would lose funding if they have a pandemic order in place when the budget takes effect Friday, unless county commissioners vote to support the order.

"I’m glad to see some communities are moving back to local control through locally elected officials," said House Appropriations Committee Chairman Thomas Albert, a Lowell Republican. "The Legislature included the mask mandate language in the budget because locally elected boards and parents are the ones who should be making these decisions — not unelected bureaucrats. The House will respond to the governor’s enforceability analysis soon."

Allegan’s health department said it asked the local board to add a resolution to Thursday’s meeting agenda backing the mask measure, but it was not included.