On October 2, 2020, the Michigan Supreme Court ruled that the Emergency Powers of the Governor Act of 1945 (EPGA), MCL 10.31, et seq., was an unconstitutional delegation of power by the legislative branch to the administrative branch. Governor Whitmer had been relying on the EPGA as the authority for over 100 COVID-19-related executive orders, including those mandating masks be worn in public, issued since April 30, 2020. Prior to that date, her orders rested firmly on the Emergency Management Act of 1976 (EMA), MCL 30.401, et seq. However, the EMA contains a durational limitation and requires legislative approval for extension, and the legislature refused to agree to an extension beyond April 30, 2020. Most recently, Governor Whitmer extended Michigan’s state of emergency through October 27, 2020 pursuant to the EPGA.

Litigation over Governor Whitmer’s authority to issue emergency orders commenced almost immediately, and inevitably made its way to the Michigan Supreme Court. The court ruled 4-3 that the EPGA was unconstitutional, with the seven justices issuing four separate opinions.

Following the court’s ruling, Governor Whitmer announced that the court’s ruling does not take effect for 21 days. That statement apparently relies on Michigan Court Rule 7.315, which provides that absent direction from the court, the clerk will send a certified copy of the order or judgment to the court of appeals and trial court between 21 and 28 days after entry of the order or judgment. Opponents of Governor Whitmer’s emergency authority who filed one of the underlying lawsuits in federal court have stated that the Michigan Supreme Court’s ruling becomes effective immediately once the federal district court decides their case.¹ However, argument over the immediate enforceability may be moot as Michigan’s attorney general’s office has stated that it “will no longer enforce the governor’s executive orders through criminal prosecution,” but that the attorney general’s decision “is not binding on other law enforcement agencies or state departments with independent enforcement authority.”²

In light of the controversy over the effective date of the court’s order, on October 5, 2020, Governor Whitmer and the director of Michigan’s Department of Health and Human Services moved the court to postpone any precedential effect of its opinion until October 30, 2020, and requested that the court immediately consider the issue.

What this ruling means for employers

Governor Whitmer’s executive orders promulgated under the EPGA will become a nullity by, at the latest, October 30, 2020, but that does not mean Michigan employers will be unregulated as it relates to COVID-19. The Michigan Occupational Safety and Health Administration (MIOSHA) has adopted an Interim Enforcement Plan explaining how it will cite employers for COVID-19 workplace hazards. Notably, that Plan provides examples of General Duty Clause citations for failure to maintain social distancing and failure to require face coverings. That Plan also has an example citation for failing to implement a protocol to protect employees from coworkers with COVID-19. Consequently, many of the requirements contained in Governor Whitmer’s executive orders are likewise found in MIOSHA’s guidance.

Additionally, employers can anticipate that in the vacuum left in the wake of the court’s action, various Michigan counties will adopt their own orders (which some had done at the outset of the pandemic). In fact, this is already occurring. On October 3, 2020, the Oakland County Health Division adopted an Emergency Order requiring face coverings, and Washtenaw County announced it is updating its Emergency Order on gatherings and 50% capacity limitations on bars and restaurants (and noted that the University of Michigan and City of Ann Arbor already have orders in place). Likewise, Ingham County announced four emergency orders covering use of face coverings, limitations on indoor and outdoor gathering sizes, 50% (or 125-person) capacity limit for restaurants, and mandatory employee health screenings. Ingham County explicitly stated that the orders did not create new requirements “but remove uncertainty around the continuation of precautionary measures for Ingham County residents and businesses.”³ More local orders will certainly follow.

This situation could well lead to fractured and varied requirements across the state. To combat such a result, Wayne County Executive Warren Evans announced that Wayne County will work with the state and surrounding counties to devise “a comprehensive, long-term pandemic response,” noting that a regional approach is necessary to combat the pandemic.⁴

Additionally, it currently seems unlikely that Michigan will adopt a law shielding businesses from COVID-19 liability. While the legislature may be pushing for such a law, as recently as September 23, 2020, it was reported that the governor’s office was not supportive.⁵ In the absence of such a law, or orders defining how businesses must operate in the current pandemic, businesses will have to make judgments as to the steps they should take to exercise the duty of care they owe their invitees and employees.

Finally, now that the court has stripped Governor Whitmer of the basis for her rule-making power, there is some chance that the executive branch and legislative branch will work collaboratively to find a solution in the interest of Michigan’s public health.

As with anything in 2020, this is a rapidly evolving situation, so please stay tuned for updates.