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Oct. 9 | This Week in Government: Latest on the Supreme Court’s Ruling on Gov. Whitmer’s Emergency Powers

Each week, the Detroit Regional Chamber’s Government Relations team, in partnership with Gongwer, will provide members with a collection of timely updates from both local and state governments. Stay in the know on the latest legislation, policy priorities, and more. See below for this week’s headlines.

  1. Senate Passes Pandemic Bills to Address Nullified Executive Orders
  2. DHHS Issues New COVID Orders for Schools, Nursing Homes
  3. Business Groups Take Stock of New COVID Regulatory Landscape
  4. Dems Call for Action on COVID-19; GOP Plans Session Days
  5. EOs Torpedoed, Whitmer Now Moves to Departmental Orders, Rules

Senate Passes Pandemic Bills to Address Nullified Executive Orders

The Senate met Thursday and passed five bills targeting areas Republican leadership deemed top priorities to fill gaps in combatting the new coronavirus pandemic following the Supreme Court’s ruling last week that rendered Gov. Gretchen Whitmer’s executive orders null and void.

Nursing home policy, unemployment benefits, pensions, and electronic meetings of public meetings were covered in the legislation before the chamber Thursday.

The bills passed with wide margins Thursday, though Senate Republicans tie-barred an unemployment extension (SB 886) to a set of bills providing COVID-19 liability protections to businesses (HB 6101HB 6030HB 6031 and HB 6032).

While the bills passed by large margins, they came under criticism.

AFL-CIO President Ron Bieber blasted the move in a statement.

“Every time you think they’ve found the bottom, Republicans stoop even lower. Today, with hundreds of thousands of unemployed workers waiting to see what they would do, legislative Republicans took advantage of the attention on a plot to kidnap and murder the governor to quietly tie-bar unemployment fixes to their dirty scheme to reward businesses who fail or refuse to protect workers and customers from the coronavirus,” Bieber said. “That’s right: they have taken unemployed folks hostage, threatening them if they don’t get their liability bailout for big businesses. It’s disgusting and wrong, and they should be ashamed of themselves.”

In a statement SB 886 and SB 911 sponsor Sen. Ken Horn (R-Frankenmuth) said he hopes the Governor will sign his bills and the other legislation to help members of the public in need of their benefits.

“Last spring, a million paychecks came to a screeching halt as businesses were shuttered and stay-at-home orders were put in place,” Horn said. “What followed was months of uncertainty for both employees and employers alike who waited to see if they would be able to open their doors again and when and if they’d be getting a call to return to work. The court’s message to the governor clearly echoed what my colleagues and I have been arguing for months – we need to work together to defeat this virus.”

Passing the Senate by a 38-0 vote was SB 1094, which would require the state to implement dedicated facilities to house COVID-19 positive nursing home patients.

Sen. Peter Lucido (R-Shelby Township), sponsor of SB 1094, praised its quick movement through the Senate in a statement following the vote.

“This reform is part of a process to work with the governor to put critical protections in law to prevent the spread of the virus among our most vulnerable people,” Lucido said. “It’s our moral duty as a society to protect our elders – far too many of whom have died from COVID-19 in nursing facilities. With this commonsense reform, we can help save lives by ensuring the health and safety of our seniors in nursing facilities and the staff who care for them. I also hope this illustrates the positive results we can achieve for the people of Michigan by working together.”

Under SB 886, which passed 38-0, eligible individuals who filed an initial unemployment claim due to COVID-19 would still be able to receive up to 26 weeks of benefits rather than up to 20 for the next several months. Senators also approved SB 911 by a 38-0 vote, which would allow retirees from the Unemployment Insurance Agency and the Michigan Occupational Safety and Health Administration to be rehired without losing retirement benefits.

The Open Meetings Act would be amended under SB 1108 to allow for local public bodies to meet remotely without the need for an executive order to be issued by the governor. The bill passed 36-2.

Speaking in opposition to SB 1108 was Sen. Ed McBroom (R-Vulcan), who questioned whether provisions in the bill could lead to abuses by local elected boards. He said there is no way to tell if a board member is actually participating in a meeting or muting themselves and being influenced on their vote by someone off-camera, among other concerns. He also questioned what the protocols are for technology glitches or failures.

“At least when it’s in the public, the members of the public who are there can see what the board members are doing, and see they’re not paying attention and hold them accountable that way,” McBroom said.

Each of the bills now will go before the House next Tuesday, the earliest date the chamber can take up the proposals.

A fifth bill, HB 6159, did not come up Thursday for a vote despite being on the tentative schedule. The bill would provide health care workers immunity from lawsuits based on their work to provide care to patients infected with COVID-19. When it might come to the floor was not immediately known Thursday.

Each of the four bills was substituted prior to the Senate votes.

Changes made in a S-2 floor substitute for SB 1094 added several provisions including a requirement for monthly reporting to House and Senate committees on COVID-19 cases, deaths, and recoveries in nursing facilities involving residents and staff, among others.

Changes to SB 1108 in an S-4 substitute included new provisions requiring a note to be made in meeting minutes if a member of the board or commission is participating in the meeting from outside of the state for reasons other than a medical issue. A sunset of March 1, 2021, was also added to the bill.

For SB 886, an S-2 substitute largely consists of setting a sunset of Dec. 31, 2020, for various provisions. A Dec. 31, 2020 sunset was also added to an S-1 substitute to SB 911.

DHHS Issues New COVID Orders for Schools, Nursing Homes

The Department of Health and Human Services (DHHS) continued its efforts Tuesday to reconstitute some of Gov. Gretchen Whitmer’s now inoperative executive orders regarding COVID-19, announcing new orders to require disclosure of coronavirus cases in schools and laying out regulations for nursing homes, juvenile detention centers, and other congregate care facilities.

DHHS Director Robert Gordon issued an order that requires local health departments to notify within 24 hours a school with a school associated case of COVID-19 and the affected school to notify the public of the diagnosis.

Gordon also issued a separate order regarding protections for residents and staff in residential care, congregate care, and juvenile justice facilities. The order requires notification to employees and residents of a confirmed COVID-19 case with a resident or employee within 12 hours and residents’ legal guardians or health proxies within 24 hours. It also requires posting a conspicuous notice in the facility indicating the presence of a resident or staffer who has tested positive and contacting the local health department when someone has tested positive.

DHHS has power under the Public Health Code to issue orders protecting public health during an epidemic.

Already some of those who brought litigation against Gov. Whitmer’s power to keep Michigan under a state of emergency, a condition that allows her to issue executive orders amending or suspending laws – are criticizing the DHHS action as an end-run around the Supreme Court decision.

Gov. Whitmer and Gordon, however, have said this power is far different and more limited than what was in question in the recent legal cases.

The Governor was asked at a Tuesday news briefing why the Legislature would work with her on bills if she is going to have DHHS and perhaps other departments acting administratively.

Gov. Whitmer pointed to the court holding that it was not her orders that were unconstitutional, but the statute – the Emergency Powers of the Governor Act – that was unconstitutional.

“Everything I’ve done has been considered appropriate with the law that was on the books. Now this question about what happened 75 years ago, I’m not going to get caught up in it,” she said. “My job as governor is do everything I can, utilize every power that I have to protect people.”

There was one area where the court – unanimously – held Gov. Whitmer had acted contrary to the law. The Governor had attempted to evade the Emergency Management Act’s limit on emergencies lasting 28 days unless the Legislature agrees to an extension by terminating her previous emergency declaration and then declaring a new one. All seven justices ruled against the Governor on that score, saying she cannot simply declare new emergencies in perpetuity to get around the requirement for the Legislature to assert to extensions beyond 28 days.

One of the orders issued Tuesday by Gordon requires local health departments to notify within 24 hours a school with a school associated case of COVID-19 and the affected school to notify the public of the diagnosis.

Gordon also issued a separate order regarding protections for residents and staff in residential care, congregate care, and juvenile justice facilities. The order requires notification to employees and residents of a confirmed COVID-19 case with a resident or employee within 12 hours and residents’ legal guardians or health proxies within 24 hours. It also requires posting a conspicuous notice in the facility indicating the presence of a resident or staffer who has tested positive and contacting the local health department when someone has tested positive.

Michael Van Beek, director of research for the Mackinac Center for Public Policy, whose legal foundation brought the case that led to Friday’s Supreme Court decision, questioned the legality of the DHHS action.

“Encouraging a state agency to issue these rules is clearly an attempt by Gov. Whitmer to sidestep the unanimous Michigan Supreme Court ruling that she acted illegally by extending her expansive emergency powers without legislative approval,” he said in a statement. “If the governor was not permitted to continue the COVID-19 emergency on April 30, she should not be permitted to extend that same emergency without the Legislature on Oct. 5 simply by resorting to another statute. This provision also lacks clear limitations on its use – the same problem that plagued the 1945 law that the Michigan Supreme Court just struck down as unconstitutional.”

On Monday, about the time Gordon announced the DHHS order on face coverings, a letter from 12 University of Michigan Law School professors was released supporting the legal basis for the action. It noted the powers in the Public Health Code and that the Supreme Court decision only involved the Emergency Powers of the Governor Act and the Emergency Management Act.

Gov. Whitmer did not directly answer questions about the extent to which departmental actions could make up for the loss of the executive orders.

She also was asked about her MI Safe Start plan, incorporated into her executive orders, that divided Michigan into eight regions and labeled each from Phase 1 to Phase 6 as far as where each stood in reopening to commerce and activity. On Friday, Region 8 (the Upper Peninsula) was to joint six of the other seven regions in Phase 4. Only Region 6 (17 northern Lower Peninsula counties) was to stay in Phase 5 with a greater level of activity allowed.

Gov. Whitmer was asked where the U.P. now stands, and she did not have a definitive answer.

“A lot of the work under the 1945 law is not still standing,” she said, referring to the Emergency Powers of the Governor Act. “However, the fact of the matter is COVID is still a very real presence and the Upper Peninsula numbers are very concerning.”

Signaling that the phase system appears out, at least for now, Gov. Whitmer added: “We can’t get caught up in whether we’re still in Phase 4 or Phase 5 in Michigan.”

Business Groups Take Stock of New COVID Regulatory Landscape

The state’s businesses no longer have dozens of detailed executive orders governing COVID-19 safety protocols and practices to apply, at least for now, but at the moment are not rushing to go back to normal.

Instead, they are waiting to see what the administration of Gov. Gretchen Whitmer does next via departmental orders and emergency rules and holding their breath a bit about the possibility of a patchwork of regulations among the nearly four dozen local health departments that have considerable public health powers.

There is also some relief at the Michigan Supreme Court’s Friday ruling that the law on which Gov. Whitmer relied to keep Michigan under a state of emergency is unconstitutional.

“We’ve been in constant contact with the administration and the Legislature all weekend long to try to find something that is tenable going forward,” Michigan Restaurant and Lodging Association President Justin Winslow said. “We have genuine concern that 46 different health departments coming up with their own versions of safety is not a realistic solution to this and we are trying to work towards something that’s a little more tenable all the way across the board.”

Winslow said finding a middle ground on an acceptable set of rules for operations would be the best path forward and the group hopes to be involved in helping find a way to resolve the issues.

“We want something that can open up opportunities for this industry in the short term without sacrificing its ability to operate three and six months from now because we were irrational or made poor choices now, so we’re trying to find that prudent, middle ground, as it were,” Winslow said.

Michigan Licensed Beverage Association Executive Director Scott Ellis called the court decision a major win for the organization. He said the group believes that no one person or group should have unilateral control, which he said the Governor was exercising through her executive orders.

He said with the ruling he believes the rule that moved service to outdoors only for establishments that make more than 70% of gross receipts on alcohol sales is null and void, which he called a win. The key priority for the group now, he said, is allowing businesses to operate at more than 50% capacity, saying if they can do so safely, they should be able to do so.

DHHS has put some limitations back in place, as have local health departments.

Michigan Chamber of Commerce President Rich Studley said the group has been urging the Legislature to return this week and develop a statutory framework with the Governor’s office for combating the virus.

Studley said many members “have gone to extraordinary efforts” to ensure the safety of their businesses when they reopened. In the short term at least, he expects most businesses to continue with many of the safety precautions enacted by executive order.

When asked if he would support a mask mandate or any other mandate that the Legislature and Governor could agree upon, Studley said it was “too soon for us to tell.”

Brian Calley, president of the Small Business Association of Michigan, said federal Occupational Safety and Health Administration as well as federal Centers for Disease Prevention and Control guidelines in response to the pandemic would be his preference as a starting point for businesses to follow for safe business operations.

“Certainly, I do think they’ll be able to work together and get some things done,” Calley said when asked if the Legislature and Governor can find some common ground.

Calley also said since the court struck down the executive orders, he believed that the enforcement actions taken by the state including fines, license suspensions, and more should be reversed as well.

He said the hope is that the confusion created by the court ruling can be addressed in the coming days. Calley said businesses likely “will figure out pretty quickly that it is in their best interest” to continue with some of the safety procedures in place for protecting their employees and customers.

Grand Rapids Area Chamber of Commerce President Rick Baker agreed with the need for a framework being needed quickly. Until further clarity is provided by the state, Baker said they are encouraging members to stay the course with what they are currently doing.

Baker said in the hospitality sector as an example that there was concern that the public has reached a point of accepting mask mandates before the court ruling.

“The important thing is that we don’t want a major spike; we don’t want to go backwards economically either,” Baker said.

He added that while the Chamber has not yet taken a formal position, he would be favorable to a mask mandate, adding that to date it has been a proven method of reducing the spread of COVID-19.

Detroit Regional Chamber President and CEO Sandy Baruah said the group has long supported a mask mandate. He said business owners also have every right to do what they feel is necessary to operate a safe workplace for their employees and customers.

“The most important thing for us is how do we as a state, as a people, keep the virus in check to keep our businesses open,” Baruah said.

He added that normally the group is hesitant when counties try to institute local mandates. However, he said the pandemic is unprecedented in everyone’s lifetime and extraordinary measures are needed to combat the virus, so having local requirements enacted is acceptable.

Not all business groups were keen on having a hodgepodge of local mandates.

Dems Call for Action on COVID-19; GOP Plans Session Days

Republican legislative leaders announced Tuesday the House and Senate will meet to deal with coronavirus fallout following the Supreme Court making executive orders on the topic moot as Gov. Gretchen Whitmer and legislative Democrats continued to call on the GOP to convene session.

House Speaker Lee Chatfield (R-Levering) and Senate Majority Leader Mike Shirkey (R-Clarklake) said in a joint statement the Senate will meet this Thursday and the House will meet next Tuesday. It is unclear exactly what COVID-19 related legislation the GOP-led Legislature will move on immediately.

Gov. Whitmer and other Democrats have focused in on unemployment policy during the pandemic.

House Democrats have introduced legislation – HB 4892 and HB 6282 – to extend the duration of unemployment benefits to 26 weeks from 20, something Gov. Whitmer did through an executive order. The bills as introduced would also increase the maximum benefit amount.

Other bills – HB 5889 and HB 5882 – would deal with separate aspects of unemployment, like allowing workers to collect benefits during a state of emergency so workers can stay home if they have to care for a family member.

“With Michigan COVID-19 cases approaching 130,000, nearly 7,000 lives lost and up to 830,000 Michiganders facing an immediate end of their unemployment benefits, our Republican colleagues still refuse to pass critical legislation, support face coverings, and other life-saving measures or provide vital resources Michiganders urgently need,” House Minority Leader Christine Greig (D-Farmington Hills) said in a statement. “As we continue to grapple with this global pandemic, the chaos and disruption in our response efforts are reprehensible. It’s past time for Republican leaders to put Michiganders first rather than their partisan political agenda because lives are at risk.”

Shirkey and Chatfield said in their statement the exact legislative agenda is yet to be determined.

“We will do everything we can to make sure the people of Michigan have peace of mind about the state’s response and about their future,” the pair said.

Gov. Whitmer has also taken considerable swipes at the Republican leaders, which they responded to in their statement with one of their own: “While the Governor spends her time on the campaign trail and taking political jabs at legislative partners, we are putting together a smarter plan of action to provide certainty to Michigan families and move this state forward.”

Gov. Whitmer spent part of Monday campaigning with Rep. Sheryl Kennedy (D-Davison) and Rep. Brian Elder (D-Bay City).

Gov. Whitmer on the one hand said she is ready to work with the Legislature, but on the other hand said she would not negotiate on protecting people’s health and needled lawmakers for the second day in a row about their October recess, demanding they return to session.

“I’m here in the Capitol today. The Legislature is not,” she said. “That’s why I’m hoping they will cancel their October recess and get back to work.”

As she said Monday, her first priority is legislation to codify the now-defunct executive order she issued on unemployment benefits, making it easier to file and extending benefits from 20 to 26 weeks.

“Without swift action, hundreds of thousands of people in our state – hundreds of thousands of hard-working people who head up families and need to put food on the table will lose their unemployment benefits if the Legislature doesn’t act in the next few days. These are the men and women who lost a job and were counting on expanded benefits to put food on the table for their kids.”

Michigan AFL-CIO President Ron Bieber in a statement said Republicans “obviously have no plan.”

“It’s disgusting and it’s wrong, but here’s what they need to do: expand eligibility for unemployment benefits to 26 weeks, allow folks to access unemployment if they’re forced to stay home by the threat of COVID-19, make it easier to use shared-work plans to avoid layoffs, cut red tape like the requirement to determine which employer must be charged for benefits, and allow retirees to return to work for the UIA without affecting their pensions,” Bieber said. “The governor did all this, but now all of these actions have been thrown out. Michigan workers’ access to earned unemployment benefits have been threatened by a partisan court, and a partisan Legislature that has demonstrated they have no plan for making people’s lives better.”

EOs Torpedoed, Whitmer Now Moves to Departmental Orders, Rules

Gov. Gretchen Whitmer confronted the ruins of the nearly 200 executive orders that she issued during the COVID-19 pandemic, smashed to nothing by the Michigan Supreme Court holding she lacked the authority to keep the state under a state of emergency, and began the task of trying to find legal authority to reissue the orders through other mechanisms.

The first move came via the Department of Health and Human Services, where Director Robert Gordon, using his authority under the Public Health Code to issue orders to protect public health during a pandemic, issued an order limiting the size of gatherings and requiring the wearing of face coverings at indoor gatherings. This appears narrower than Gov. Whitmer’s face covering requirement, but still requires businesses, schools, government offices or other operations “must not allow indoor gatherings of any kind unless a face covering is worn other than schools in 17 northern Michigan counties.”

There are exceptions, as there were under Gov. Whitmer’s executive orders, for people under five, who cannot medically tolerate a face-covering, are eating or drinking while seated at a food service establishment, are exercising outdoors, and able to maintain six feet of distance from others, are swimming, among others.

But unlike Gov. Whitmer’s executive order 2020-153, it makes no mention of public transportation, does not require businesses or government offices to deny access to people without face coverings, nor does it require businesses to post signs regarding the face covering obligation. Unlike a separate Gov. Whitmer order, there is no requirement for face coverings at day care centers. And there is nothing regarding the face covering requirements that Executive Order 2020-184 required in workplaces for employees.

“Our legal authority here is clear. It’s different,” Gordon said of the difference between an action under the Public Health Code and Gov. Whitmer’s use of the now-invalidated Emergency Powers of the Governor Act. “Obviously the Supreme Court’s decision was unwelcome, and it has forced rapid review of multiple orders. The department is acting today on those we regard as most urgent and most clearly within our authority.”

Gordon cautioned of that authority: “It’s narrower. It has clearer contours. It allows for less action.”

Gordon said more department orders are coming. He also said the Department of Labor and Economic Opportunity also will be acting, it appears through the emergency administrative rules process, to reissue at least some form of the orders involving workplace safety. This new order replaced one he issued July 29 that was far more expansive because it adopted everything in two major executive orders.

It was also clear since the Republican-led Legislature won its stunning and decisive victory at the Supreme Court that in fact nothing is clear. It’s not even clear whether the court’s decision had immediate effect and Gov. Whitmer’s rules still have any legal weight. The Governor and Attorney General Dana Nessel appeared to retreat from their initial claim that the usual 21-day period for a party to request reconsideration applies when they filed a motion with the court to set the effective date as Oct. 30.

On the effective date of the ruling, several have said because it was a case brought to the court by a certified question from a federal judge, the ruling will take effect once judges with actual litigation on the Governor’s COVID-19 powers issue orders enforcing the Michigan Supreme Court decision.

Gov. Whitmer still had 43 active, operational executive orders at the time of the court’s decision.

Those that suspended or amended statutes almost certainly cannot be revived through administrative action, said Steven Liedel, an attorney with Dykema and former legal counsel to Gov. Jennifer Granholm.

Perhaps the most obvious example is Gov. Whitmer’s use of executive order to extend unemployment benefits to 26 weeks. Statute only provides for 20 weeks. Gov. Whitmer in a statement said there are 830,000 unemployed Michigan workers at risk of losing those additional six weeks of benefits, part of her rationale for asking the court to set an Oct. 30 effective date.

“We need this transition period to protect the 830,000 Michigan workers and families who are depending on unemployment benefits to pay their bills and put food on the table, and to protect Michiganders everywhere who are counting on their leaders to protect them,” she said.

LEO spokesperson Jason Moon said of the unemployment benefits situation that the Unemployment Insurance Agency is “working with the Office of Attorney General now to understand all of the ramifications of the Michigan Supreme Court advisory requirements.”

There were indications from LEO officials it would try to replicate the many detailed workplace safety protections in Executive Order 2020-184 – everything from infection control practices, making face coverings available to employees, requiring of face coverings in shared spaces, control of entry points, social distancing and more.

Sean Egan, director of COVID-19 workplace safety for the state, said in a statement that the Michigan Occupational Safety and Health Administration’s authority to conduct investigations and enforce workplace safety protections arises from statute to protect workers from recognized hazards. The Supreme Court decision does not change that authority, Mr. Egan said.

Further, the citations MIOSHA has issued to employers for violating executive orders are based on MIOSHA’s statutory general duty clause, he said, and the citations remain valid despite the court ruling.

“MIOSHA will continue to operate within its statutory authority to protect Michigan’s workers and keep workplaces safe,” he said.

Moon said MIOSHA would still enforce the workplace safety requirements in Executive Order 2020-184. He said, however, that the capacity limits at bars, restaurants, pools, casinos, and other venues are under evaluation, as is the smoking ban at the three Detroit casinos.

He said emergency rules are likely “to give businesses desired clarity.” LEO will work with DHHS and others “to identify the best source of authority to keep Michiganders safe” when it comes to capacity restrictions, Moon said.

Nothing in the new DHHS order or in any emergency rules so far replaces some of the most significant components of Gov. Whitmer’s executive orders, like the capacity limits at restaurants, bars, casinos, movie theaters, and more.

The new DHHS order does require food service establishments to close common areas where people can congregate, dance, or mingle. It also prohibits indoor gatherings anywhere alcoholic beverages are sold for onsite consumption unless parties are seated and separate from each other by at least six feet and do not intermingle. But it appears the prohibition Gov. Whitmer imposed via executive order on indoor dine-in service at establishments deriving 70% or more of their revenues from alcohol is gone.

The gathering restrictions in the DHHS order do mimic Gov. Whitmer’s executive order. Indoor gatherings are limited to 10 people at a residence. Indoor gatherings at a non-residential venue are permitted provided everyone wears a face covering.

Indoor gatherings of more than 10 and up to 500 people at a non-residential venue can occur with attendance limited to 20% of the venue’s seating capacity (25% in the 17 northern Michigan counties that constitute Region 6) where there is fixed seating and 20 persons per 1,000 square feet in venues without fixed seating (25 in Region 6). Face coverings must be worn.

Outdoor gatherings of up to 100 at a residence are permitted. Outdoor gatherings of more than 100 and up to 1,000 persons at a non-residential venue are allowed with fixed seating venues limiting attendance to 30% of seating capacity or 30 persons per 1,000 square feet in venues without fixed seating and face coverings required at both.

The DHHS order also appears to reinstitute the face covering requirement Gov. Whitmer imposed for organized sports. Face coverings remain required for athletes who cannot socially distance.

Among the many orders that appear in jeopardy besides unemployment benefits:

  • The eviction diversion program Gov. Whitmer set up to protect renters and property owners with mortgages;
  • Suspension of laws requiring health care providers to take exams, be fingerprinted and fulfill continuing education requirements as part of licensure;
  • Allowing governments and other public bodies to meet virtually;
  • The prohibition on disciplining or firing workers at risk of infecting others with COVID-19 and requiring workers who test positive or display the principal symptoms of the disease to stay home for various periods time depending on the situation.
  • The suspension of allowing electronic signatures in several situations;

Then there are several orders whose fate is unclear:

  • Requiring anti-discrimination policies for health care providers and requirements that they develop equitable access to care protocols;
  • Barring charges for a COVID-19 test;
  • Making first responders, nursing home workers, medical workers, and other automatically eligible for workers’ compensation if they test positive for COVID-19;
  • Migrant worker housing protections;
  • The ban on water shutoffs.

Gordon said he expected to issue additional orders soon, mentioning nursing homes as one example.

The goal is to keep as much of what Gov. Whitmer implemented as possible, Gordon said, while saying the narrower authority of the public health code prevents keeping the closure of indoor service at bars with more than 70% of their revenues from alcohol.

“Our actions today flow from a legal authority that was not at issue in Friday’s case. It’s important that we stay the course that we’ve been on,” he said. “We are tired of the virus, but the virus is not tired of us.”

Liedel said there is considerable ability to keep much of what Gov. Whitmer did, saying the Public Health Code and the MIOSHA statute have powerful tools, but it will be more unwieldy and the loss of the ability to amend or suspend statutes is significant.

“The net result is going to be it’s a lot more confusing for folks to understand,” he said.


What Michigan Supreme Court, AG Decisions on Governor’s Emergency Powers Mean for Business