The Michigan Supreme Court, in a divided opinion, recently invalidated Michigan’s Emergency Powers of Governor Act of 1945, MCL 10.31 et seq. This was the statute under which Governor Whitmer issued a number of COVID-19 executive orders. Those orders, therefore, will now be void by the end of October. The case is Midwest Inst of Health, PLLC v Governor of Michigan (In re Certified Questions from the United States Dist Court), _ Mich __, __ NW2d __ (Oct. 2, 2020).
Why it Matters:
The Governor, through various executive Orders, imposed many COVID-19 restrictions and mask requirements for Michigan businesses and employees.
Voiding these executive orders, however, does not mean Michigan employers will be unregulated when it comes to COVID-19. Instead, businesses must continue to comply with administrative regulations from Michigan agencies and county health departments and be aware of new such regulations that will likely fill the vacuum created by the Michigan Supreme Court.
Go Deeper: What this means for employers and employees.
With Governor Whitmer’s executive orders no longer in place, many other regulations remain or have been issued following the divided Supreme Court Opinion. Here are regulations employers should understand:
- Michigan Department of Health and Human Services
On October 5, the Michigan Department of Health and Human Services (Human Services) issued an order intended to partially fill the gap created by the Supreme Court’s opinion. The emergency order provides in relevant part:
- Limitations on attendance at certain gatherings.
- Face covering requirements, except for limited circumstances.
As to face masks and business operations, the Human Services’ order requires the wearing of face coverings for indoor gatherings at businesses, government offices, schools, and “other operations.” There are exceptions to the face covering requirements; masks are not required for children younger than five, individuals who cannot medically tolerate a face covering, and when eating or drinking while seated at a food service establishment.
In contrast to the former executive orders, the Human Services’ Order does not allow an exemption from the mask requirement at “gatherings” even if the participants are maintaining social distancing of six feet. The order went into effect on October 5, 2020, and remains in effect through October 30, 2020.
Violation of the Human Services’ order is a misdemeanor. It is punishable by imprisonment for not more than six months, a fine of not more than $200, or both. Law enforcement officers may enforce the order or coordinate with other entities on enforcement.
- MIOSHA COVID-19 Employment Regulations
On June 17, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) adopted a COVID-19 Interim Enforcement Plan. Many requirements in the now voided executive orders are found in MIOSHA’s guidance. For example, the MIOSHA plan includes example citations for failing to implement a protocol to protect employees from coworkers with COVID-19.
The plan also establishes policies and procedures for handling COVID-19 issues, including fatalities, hazards, and how citations for COVID-19 workplace hazards will be handled.
- County Health COVID-19 Regulations
Additionally, many counties issued orders after the Michigan Supreme Court’s opinion. These counties include Washtenaw, Ingham, and Oakland County. But Oakland has since rescinded its order since the Michigan Department of Health and Human Services issuance of its order. Employers should anticipate other Michigan counties will continue to adopt their own order.
Use this link to contact Michigan attorney Jason Shinn if you have questions about this article, or complying with Michigan or federal employment laws or litigating claims under both. Since 2001, Mr. Shinn has represented companies and individuals in employment discrimination claims under federal and Michigan employment laws.