Michigan Supreme Court Invalidates
Governor’s COVID-19 Executive Orders
On October 2, 2020, the Michigan Supreme Court ruled that Governor Whitmer did not have the authority under state law to issue Executive Orders related to COVID-19. See In re Certified Questions from the United States District Court, Western District of Michigan (Mich. October 2, 2020).
The Michigan Supreme Court’s ruling likely affects Executive Order 2020-114, which requires employers to take certain COVID-19 workplace safety measures, including employee training. However, several uncertainties surround the Michigan Supreme Court’s ruling, including when the Executive Orders are no longer in effect.
Shortly after the ruling, Governor Whitmer stated that it did not take effect for 21 days based on the right to request a rehearing within that time period. However, the Governor’s opponents argue the court’s ruling is effective immediately. The Michigan Attorney General also said her office will no longer enforce the Governor’s COVID-19 Executive Orders. Given this uncertainty, the Governor asked the Michigan Supreme Court to extend the effective date of its ruling to October 30, 2020, to give the state time to transition. The Governor’s request is currently pending.
On October 9, 2020, the Michigan Department of Health and Human Services (MDHHS) issued an Emergency Order, which implements gathering prohibitions and face-covering mandates. Notably, the Emergency Order does not impose other previously mandated COVID-19 workplace mitigation measures, such as employee training. The MDHHS maintains that it has the authority to issue emergency orders under a separate state statute that was not addressed by the Michigan Supreme Court’s decision. The Emergency Order remains in effect until October 30, 2020.
The Michigan Occupational and Safety Administration (MIOSHA) recently issued multiple citations to several employers for non-compliance with Executive Order 2020-114, including the failure to provide compliant COVID-19 workplace safety training. MIOSHA currently takes the position that the Michigan Supreme Court’s ruling does not invalidate these citations.
MIOSHA has also adopted a COVID-19 Interim Enforcement Plan explaining how it intends to issue citations for COVID-19 workplace hazards. Importantly, the Plan continues to note as workplace safety hazards many of the same requirements found in Governor Whitmer’s COVID-19 Executive Order, including social distancing, face coverings, and employee training.
Should Employers Continue to Provide COVID-19 Workplace Safety Training?
In light of the uncertainty surrounding the current validity of the Governor’s Executive Orders, employers should continue to follow the workplace safety mandates in accordance with Executive Order 2020-114, including the employee training mandate, until the Michigan Supreme Court provides clarity on when the Governor’s Executive Orders are no longer in effect. We also expect the MDHHS to continue issuing emergency orders relating to COVID-19, which could require employee training and the other workplace safety mandates.
The status of the Governor’s COVID-19 Executive Orders is rapidly developing. Clear Law Institute will continue to monitor developments in Michigan on this issue and provide any necessary updates.
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