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What Does it Mean Now that the Michigan Supreme Court has Found Governor’s Pandemic Executive Order Authority Limited?

The Michigan Supreme Court (MSC) issued an opinion (4 - 3 decision) seemingly overturning the 1945 Emergency Powers of Governor Act. The Governor has relied on this law to extend the state of emergency powers past her initial period of implementation. The Court opined that the Governor’s power should have lasted only 28 days, which would have ended on April 30, 2020. The Michigan Supreme Court, in responding to a question asked by a federal court about the executive orders in front of it (not ruled),  that the 1945 law unconstitutionally delegated too much of the Legislature’s power to the Executive branch.  

This directly impacts the Governor’s executive orders imposed on businesses since April 30th. Though still being debated, it seems Friday’s MSC opinion does not take effect for (arguably) 21 days. This means her executive orders “retain the force of law” until 10/23/2020.

Following both the opinion and the Governor’s statement, Michigan’s Attorney General stated she would no longer pursue enforcement of the executive orders at this time but would start pursuing enforcement of the new DHHS orders.

If the 21-day implementation period is effective upon the completion of it this ruling, it would lift the safety protocols issued by executive orders since 4/30/2020, as well as business closures or operating restrictions all dictated by the executive orders.

What should employers do now? It is recommended employers maintain compliance with the safety protocols outlined so far. This is recommended because Michigan’s Departments of Health and Human Services (DHHS) and Occupational Safety and Health Agency (MIOSHA) will be coming up from behind to implement and enforce general rules under their respective regulatory authorities.

As of Tuesday this week, the DHHS issued orders require face masks and restricting indoor gatherings. More directives are expected shortly. Further the Michigan Department of Labor and Economic Opportunity will be acting through the emergency administrative rules process to issue workplace safety orders. Sean Egan, Director of COVID-19 workplace safety in Michigan said that MIOSHA and its authority to conduct investigations and enforce workplace safety was not changed by the MSC order.

It appears that many of the executive order safety directives will be picked up in short order by other administrative departments in one form or another.

Gongwer News reported Monday, October 5th that some of the executive orders applying to the workplace that may not survive the transition to interim rule or other directive are:

  • Extension of unemployment benefits from 20 to 26 weeks
  • The prohibition on disciplining or firing workers at risk of infecting others with COVID-19 and requiring workers who test positive or display the principal symptoms of the disease to stay home for various periods time depending on the situation.

It is still unclear whether other orders that have workplace implications will also fall. Two that are up in the air currently are:

  • Requiring anti-discrimination policies for health care providers and requirements that they develop equitable access to care protocols
  • Barring charges for a COVID-19 test

On Saturday the Small Business Association of Michigan hosted a special edition of its the Small Business Briefing podcast. Former Lieutenant Governor and current SBAM President Brian Calley discussed the implications of this opinion on employers going forward. Mr. Calley predicted the Court opinion should not immediately change anything. However, and to the point of the Michigan AG’s statement over the weekend, enforcement would not be possible.

Further and pursuant to this opinion, the next step should move this issue to both the Legislature body and the state’s administrative agencies to put together legally enforceable rules and regulations.

Calley pointed out that there is still MIOSHA, public health codes, and general liability risks at play if an employer does not follow the safety protocols. Health codes can close down a business if they present an existing threat to public health. Calley pointed out that under current law, the state should not have the authority to shut a business down because they fear a threat to public health. There is a difference.

Should an employer continue to have a rule enforcing masking? Watch for local and county health authority issuances. Further, most employers that operate on private property have the right to make their own rules even that exceed what the law or regulation may require. 

Calley advises we still do not fully know what is legal and what is not today. He foresees legislative and regulatory actions coming. He also opined that he thought that Michigan’s regulatory agencies probably already have applicable authority in place should they wish to quickly implement control.

The difference between what the Governor tried to do and what constitutionally should be done is in the process of legislation and regulation that will be used to implement safety rules and regulations rather than implementation by way of executive decree. Calley further noted that there is a process for emergency or interim rules that the Governor could use and would provide control that could last up to six months. The interim rules process has been used in the recent past on other laws. He warned that this interim rule process making is not an absolute work around and can be challenged again by the Courts. However, it puts the proper rule of constitutional law back in play between the executive and legislative branches.

Running somewhat coincidentally, Friday’s legal opinion is a repeal initiative by a group called Unlock Michigan. On Friday they submitted more than enough signatures (539,000) to initiate a repeal of the 1945 law.  The next step for this initiative is a veto proof legislative vote sometime later this year.

Michigan employers would be wise to continue applying and following the safety protocols now advised by the governor’s executive orders. They are based on sound safety practices also recommended by the Centers for Disease Control (CDC) and would arguably be an affirmative defense against a civil lawsuit resulting from a guest, visitor, or outside business associate being infected while on site at a place of business as well as MIOSHA enforcement.

 

Sources:

AP Michigan Governor’s virus powers upended with court ruling 10/2/2020.

Detroit Free Press. 539K signatures submitted to repeal Gov. Gretchen Whitmer’s emergency powers. 10/2/2020 Also DFP Michigan Supreme Court Rules against Whitmer on emergency powers but effect unclear. 10/3/2020.

Small Business Association of Michigan Small Business Briefing 10/3/2020.

Gongwer Whitmer asks court to delay ruling’s effect to October 30th 10/5/30

Gongwer. EOs Torpedoed, Whitmer Now Moves To Departmental Orders, Rules 10/5/2020

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