In the wake of the Michigan Supreme Court’s ruling regarding the state’s COVID-19-related executive orders, the Michigan Department of Health and Human Services (MDHHS) has issued new orders, the Michigan Occupational Safety and Health Administration (MIOSHA) has ramped up enforcement of COVID-19-related protocols, and local counties are issuing their own orders as well. Below is a recap of the latest developments.

The Michigan Supreme Court’s Ruling

Beginning with Executive Order 2020-04 on March 10, 2020, declaring a state of emergency across Michigan, Governor Gretchen Whitmer has issued a series of executive orders instituting COVID-19-related measures, including the initial “Stay Home Stay Safe” order (Executive Order 2020-21), which closed many in-person business operations for several months. On April 30, 2020, the Michigan Legislature declined to extend the governor’s emergency powers, which had allowed her to impose COVID-19 restrictions via executive orders.

On October 2, 2020, the Michigan Supreme Court issued an opinion that the governor lacked the authority to extend the state of emergency and continue to issue COVID-19 emergency orders under the Emergency Management Act (EMA), 1976 PA 390, as amended, Michigan Compiled Laws (MCL) 30.401 et seq., after April 30, 2020. The court concluded that under the EMA the governor is only permitted to declare a state of emergency for up to 28 days, after which the legislature must authorize extensions, which did not happen. The court concluded that the governor’s alternative cited authority, the Emergency Powers of the Governor Act of 1945 (EPGA), 1945 PA 302, as amended, MCL 10.31 et seq. , did not support her actions because the EPGA violates the Michigan Constitution by indefinitely delegating legislative powers to the executive.

The Impact of the Ruling

This supreme court’s ruling invalidates the governor’s COVID-19-related executive orders issued after April 30, 2020. Although the governor initially sought clarification that her orders would remain in effect for at least 21 days, the Michigan Supreme Court, on October 12, denied Governor Whitmer’s request to delay the effect of an opinion that ruled her executive orders on the coronavirus pandemic are unconstitutional. Attorney General Dana Nessel’s office is no longer enforcing the governor’s COVID-19 executive orders through criminal prosecution.

What to Expect Going Forward

The supreme court’s decision has left many business and employers uncertain about what rules still apply and what authority they have for enforcing measures like mandatory mask requirements with customers. In particular, employers are left wondering what rights and obligations they have regarding remote working arrangements now that the prior executive order mandating remote work (where feasible and effective) has been invalidated.

The Michigan Department of Health and Human Services

Over the past week, the MDHHS has stepped into the void and issued two COVID-19 orders that impact employers and businesses. MDHHS issued the order pursuant to its authority under MCL 333.2253, which provides that the MDHHS director may issue emergency orders to prohibit the gathering of people and establish procedures to be followed during an epidemic to ensure continuation of essential public health services and enforcement of health laws. The authority of the MDHSS to issue pandemic orders was not at issue in the supreme court decision; however, it may also come under legal challenge.

MDHHS COVID-19 Emergency Orders

On October 5, 2020, MDHHS issued an emergency order that restricts gathering sizes, requires face coverings in public spaces, and places limitations on bars and other venues. Regarding face coverings, the order prohibits businesses, schools, government offices, and other operations from having indoor gatherings unless individuals wear face coverings, with several enumerated exceptions. Notably, a business may not assume that someone who enters the business without a face covering falls within one of the exceptions to the face-covering requirement, but may accept a verbal representation by the individual that he or she is not wearing a face covering because he or she falls within a permissible exception in the order.

On October 9, 2020, MDHHS updated its prior order to require specific workplace protections. In doing so, the MDHHS rescinded its October 5, 2020, order, but continued the above face-covering requirements in the updated order. In issuing its order, the MDHHS openly stated that it is following the prior (now invalidated) executive orders as closely as possible, albeit under a different Michigan law. Although MDHHS clarified that “MDHHS rules do not include all prior worker protections” as existed under the now defunct executive orders, the order broadly states: “Employers must not require workers to gather with other persons at work in violation of this order.”

What is a gathering?

The MDHHS defines a “gathering” as “any occurrence where two or more persons from more than one household are present in a shared space,” but excludes the “incidental gathering” of persons in a shared space, including an airport, bus station, factory floor, food service establishment, shopping mall, public pool, or workplace. The order is vague as to whether and under what circumstances an employer may require in-person work. The mandate, below, that “gatherings of employees in the workplace are prohibited … if not strictly necessary to perform job duties” could be construed to prohibit in-person work that is not “strictly necessary” or, more narrowly, that any employees who come to work cannot gather in the workplace in a way that violates the order.

Much will depend on how the MDHHS enforces this provision, whether a court determines that the MDHHS had the power to prohibit in-person work, and whether the Michigan Legislature provides anticipated legislative action on this issue. For now, employers may want to consider documenting why in-person work is necessary and ensuring that any employees who are at work do not gather in a way that violates the MDHHS order. Unless renewed, the MDHHS order expires on October 30, 2020.

What is clear is that any in-person work must comply with mandatory face coverings and other workplace pandemic protocols, including health screenings. Among other requirements, Section 4 of the 10.9.20 order by MDHHS provides:

Gatherings of employees in the workplace are prohibited … if not strictly necessary to perform job duties, provided however that, where gatherings are necessary, employees must still maintain six feet of distance from one another where practicable. [Some exceptions exist for Region 6.]

The order prohibits employees who are: (1) subject to a recommendation to isolate or quarantine consistent with guidance from the U.S. Centers for Disease Control and Prevention (CDC) and have been instructed to remain home by a health or public health professional or (2) are awaiting a COVID-19 test or the results of a COVID-19 test after having symptoms of COVID-19 from being present in a gathering at work until advised by a health or public health professional that they may return to work or the following conditions are met:

• 24 hours have passed since the resolution of fever without the use of fever-reducing medications;
• 10 days have passed since their symptoms first appeared or since they were administered a COVID-19 test that yielded a positive result, if applicable; and
• other symptoms have improved.

The order requires all businesses or operations that require their employees to gather with other persons for work to conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms of COVID-19 and suspected or confirmed exposure to people with possible COVID-19.

Michigan Occupational Safety and Health Administration

MIOSHA has already issued citations to a number of employers for not taking proper precautions to protect employees from COVID-19. The citations cover issues such as absence of face coverings, insufficient cleaning measures, and lack of overall preparedness plans. These citations are typically issued under the MIOSHA “general duty” clause, which requires employers to provide a workplace that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to an employee. The Michigan legislature reconvened on October 8, 2020, to address pandemic protections and protocols in the wake of the supreme court’s ruling.

Local County Health Orders

Local county health departments are also filling the void on COVID-19 pandemic obligations. As predicted, we are seeing a patchwork of activity at the county or city level to enact various COVID-19 related mask and social distancing requirements and gathering limitations.

Oakland County

Oakland County Health Division quickly adopted an emergency order requiring face coverings on October 3 (although the order has since been rescinded in light of the MDHHS statewide order).

City of Detroit

On October 9, 2020, the City of Detroit Public Health Department issued the “Emergency Order for Control of Epidemic.” In Section IV of the order, most of the workplace requirements that existed under the now invalidated executive orders are repeated, with some notable exceptions. The prior mandate for remote working is now a recommendation: “Any work capable of being effectively (i.e., without the worker leaving his or her home or place of residence) is recommended to be performed remotely.” The order also requires health screening prior to entering the workplace, nonretaliation against workers who stay home due to suspected or confirmed cases of COVID, a COVID-19 response plan, and most of the other requirements in the prior executive orders.

What Is Next?

For now, businesses may want to exercise caution before changing or abandoning COVID-19 safety protocols based on the supreme court’s ruling. Employers and business may be best served by carefully reviewing any adjustments in COVID-19 workplace safety protocols that are contemplated based on the supreme court’s decision. While the court’s decision raises many questions, as we have seen this past week, the MDHHS and local governments have filled the void with emergency orders that mirror the prior executive orders in key aspects. Additionally, an employer’s duty to ensure a safe workplace (and potential liability for not doing so) stems from statutory and common law obligations that are independent of the executive orders. For example, the Americans with Disabilities Act (ADA) requires employers to engage in an interactive dialogue and provide reasonable accommodations to disabled employees, including, where appropriate, telecommuting and time off from work. Additionally, as noted above, we expect MDHHS and MIOSHA to continue to be very active in this space.