Michigan public agencies may not require employees or customers be vaccinated against COVID-19 while state and local health officials cannot enact or enforce mask rules for K-12 students under provisions of a budget bill that Gov. Gretchen Whitmer and legislative leaders say will be approved.

The nearly $70-billion budget proposal also mandates the state publish detailed justification for any future pandemic orders.

Senate Bill 82, a budget measure that emerged from closed-door negotiations between legislative leaders and Whitmer’s administration on Tuesday, includes nearly 1,000 pages outlining funding for all state departments next financial year. It passed the Senate with unanimous support.

“We wanted to negotiate. Those negotiations were in good faith, they were bipartisan. They were very productive. They weren’t always easy, but I’m pleased with how the budget ended up,” Whitmer said, speaking Tuesday afternoon from outside the Mackinac Policy Conference on Mackinac Island.

“We did not come to agreement on certain things. We did on others. At this point, when the budget is shared more broadly, I’ll be happy to delve in a little bit.”

Whitmer has previously said she is not currently considering any vaccine requirements or mask mandates. But she has called on local health and education leaders to enact orders requiring masks at schools.

In a statement, Whitmer spokesman Bobby Leddy did not address how the governor feels about the pandemic measures included in the budget bill.

“This is a budget that puts Michiganders first and the governor is pleased that we were able to work together with the legislature to get it done. When the legislature passes the budget, we will conduct a thorough legal review of the final bills,” Leddy said.

Last week, Whitmer and legislative leaders announced they had agreed to broad budget priorities, but details of the agreement were not released until Tuesday. The new financial year begins Oct. 1.

The language banning vaccine mandates or passports is thorough, but does provide a federal caveat. State agencies cannot require vaccinations for people to enter any public facility, “except as provided by federal law or as a condition of receiving federal Medicare or Medicaid funding.”

President Joe Biden recently announced his administration would require COVID-19 vaccinations for staff at any Medicare or Medicaid-certificated locations.

The budget bill also bans any state entity from requiring or creating vaccine passports, establishing or publicly releasing any COVID-19 vaccine database or retaliating against someone who chooses to not get vaccinated.

If there is a federal vaccine mandate, the bill would require the state provide exemptions for those whose doctors say they should not get vaccinated or anyone with “religious convictions or other consistently held objection to immunization.”

The budget bills expressly prevent state and county health departments from enforcing any mask mandates on anyone who is 17 or younger.

In theory, that means local school boards or school districts could enact mask requirements. In practice, many have not, indicating they are not public health experts and instead awaiting direction from local or state health directors.

While the Michigan Department of Health and Human Services has the power to enact a statewide mask mandate, Whitmer and department Director Elizabeth Hertel are instead asking local leaders to enact their own rules. More than half of all Michigan students attend a school with a mask mandate, but that means hundreds of thousands do not.

The requirement to provide more justification for an emergency order stems from lawmakers frustrated with Whitmer’s orders early in the pandemic. Republicans argued she acted unilaterally and generally failed to provide any data or sources indicating why she thought limiting gathering sizes or requiring masks was necessary.

The budget bill requires the health department issue a report within seven days of enacting a new pandemic order. The report must include:

  • An explanation of the epidemic
  • Which areas of the state are threatened by the epidemic
  • Evidence used to determine that gathering restrictions are necessary
  • A list of outside experts and sources relied upon to craft the order and the amount of money paid to these experts and sources
  • A list of state employees responsible for creating the order
  • A list of which factors the department will weigh when deciding to end or change the order

Consequences for failing to make such a report were not immediately clear.

The bans on vaccine mandates and mask rules, along with the pandemic reporting requirements, are nestled in what is known as “boilerplate language.” The language is not intended to create new policies, but legislators do frequently attempt to insert objectives that may have stalled in the traditional legislative process.

Whitmer has line-item power for budget bills, which means she can nix specific components of a bill while allowing the broader measure become law. However, on Tuesday she declined to answer questions about COVID-19 components in the budget.

Senate Majority Leader Mike Shirkey, R-Clarklake, and House Appropriations Committee Chairman Thomas Albert, R-Lawton, heralded the entire budget package.

Shirkey “is particularly glad we were able to negotiate language to ensure transparency and accountability when and if statewide public health orders are issued,” said his spokeswoman Abby Mitch.

“There are specific negotiated items all parties agreed to and we do expect that governor will accept the public health transparency and accountability language —increasing accountability and transparency is just good government.”

Albert touted some of major proposals in the budget, including a $1.4 billion plan to bolster child care services that was spearheaded by Whitmer. But a news release from his office also highlighted the pandemic provisions.

“Language in the budget plan leaves decisions on whether masks should be worn in schools to local school boards and parents – not the state or unelected bureaucrats,” the release states. .

“Universities and community colleges with vaccine mandates must provide clear, obtainable exemptions.  A student’s request for an exemption can’t be denied unless every reasonable accommodation for the student has been exhausted.”

Senate Democrats also heralded passage of the budget bills. Their statements did not reference the new pandemic requirements, instead focusing on investments in higher education, infrastructure and other priorities.

**By Dave Boucher