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Miller Canfield on What’s Next for the Governor’s Emergency Powers

October 9, 2020

There is a lot of confusion following the Michigan Supreme Court’s Oct. 2 ruling that Gov. Whitmer exceeded her authority in extending the state of emergency orders beyond April 30 to combat the COVID-19 pandemic. Despite the court’s decision, businesses and employers will continue to have legal obligations to provide a safe working environment for their employees, customers, and visitors. They also should continue to implement and follow safety policies, practices, and procedures in accordance with public health guidelines and local ordinances.

Miller Canfield experts, Corporate Group co-leader Tom Appleman, and labor and employment attornies Nhan Ho and Kamil Robakiewicz addressed how employers need to proceed in mitigating the spread of COVID-19 and how the ruling impacts safety requirements and liability.

Perhaps the most confusing element of this decision is timing. Robakiewicz shared that this decision was unusual because it was not an appeal from state courts and most Supreme Court Decisions are. Instead, there is a pending federal court case to determine whether statutes that give the governor power to declare emergencies apply, are constitutional, etc.

What we know now is that Gov. Whitmer is taking the position that her executive orders are still in place but will no longer be enforceable by the end of the month. However, Attorney General Dana Nessel stated that she would not enforce the orders. At this time, it is unclear when the Supreme Court ruling will officially go into effect.

Though timing and enforcement are still in question, several of the Governor’s key executive orders are impacted by the Supreme Court’s decision including:

  • Safe Start Order: This includes remote working, the practice of social distancing and mask wearing, and restrictions on certain venues, gatherings, and organized sports.
  • Workplace Safety Order: This includes special regulations for employees that must work outside of the home and requires things like employer safety plans and protocols, use of face coverings, increased cleaning and disinfecting, reporting of cases, as well as industry-specific guidelines.

Additional orders impacted encompass terms for wearing facial coverings in public, return to school plans, expansion of unemployment benefits, and more.

“Right now, the question of whether these orders are still valid or not is still inconclusive,” said Ho. “We’ll have to wait until what the Federal court does before we can really act upon it.”

Further, Ho advised businesses to keep up-to-date on the complex development of this ruling and to not just discard safety procedures that they already put in place because they are still responsible for protecting their workers and people that come on to their premises.

As the enforcement of safety guidelines and COVID-19-related regulations is in flux, many businesses are unsure if they are still able to implement safety practices and refuse service to those who refuse to comply. Robakiewicz said, generally, yes, and recommended that businesses continue to implement these measures. Businesses may still maintain these requirements, but may need to engage local law enforcement to support them now that the State’s backing is now in question.

“Regardless of the executive orders, businesses do have an obligation to protect their employees – maintain their safety – as well as individuals that – you know – patronize those businesses,” he said. “Businesses generally, they have property rights, and they have private property, and they are free to make requirements for anyone who wants to make use of their services or enter their property.”

Liability is also a significant uncertainty and challenge for businesses. Appleman shared that there are still many platforms for enforceable guidance for businesses to consider to protect themselves, employees, and patrons. Certain localities like Oakland County issued emergency orders in response to the Supreme Court decision as authorized by Public Health Act statutes. Similarly, agencies like the Michigan Department of Health and Human Services (MDHHS) and MIOSHA currently have guidelines in place by which businesses should abide. Violations can constitute misdemeanors and are enforceable by law enforcement authorities. As far as protection for businesses, many questions remain as liability-related legislation is still in the works at a national and state level.

“If somebody gets exposed and can meet causation test to show that it came from a particular business or exposure at the business, can there be liability for failure to protect?” shared Appleman as an example of the questions that remain in light of the ruling.

Ultimately, the experts recommend businesses stay the course with regulations they put in place in compliance with the executive orders in question while the timing and validity of their enforcement are still being decided.