On October 2, 2020, the Michigan Supreme Court (“Court”) ruled that Governor Gretchen Whitmer (“Governor”) lacked authority to continue issuing COVID-19 related executive orders and/or extend Michigan’s emergency declaration past April 30, 2020.  In the aftermath of the Court’s decision, employers and residents were left to ponder what COVID-19 related requirements remained valid.  As the dust settled, Michigan’s governmental agencies increased their issuance of COVID-19 mandates to instill order and combat uncertainty.  Specifically, both the Michigan Occupational Safety and Health Administration (“MIOSHA”) and the Michigan Department of Health and Human Services (“MDHHS”) have intensified their COVID-19 related actions to fill the gaps left behind by the Governor’s now defunct executive orders.

The October 2, 2020, Court decision concluded that, under the Emergency Management Act (“EMA”), the Governor is able to declare a state of emergency for twenty-eight (28) days, at which point only the Michigan Legislature has the power to authorize extensions of the Governor’s declaration, which it did not do in this case.  Moreover, the Court also concluded that the Emergency Powers of the Governor Act of 1954 (“EPGA”) did not grant her authority to indefinitely continue extending the state of emergency.

Why does this matter?  As indicated above, the Court’s opinion invalidated all of the Governor’s COVID-19 related executive orders issued after April 30, 2020.  Because of this, the Attorney General’s office is no longer enforcing the Governor’s COVID-19 executive orders.  Importantly, however, Michigan’s governmental agencies have taken it upon themselves to fill in the gaps left behind by the passé orders.

Michigan Occupational Safety and Health Administration

On October 14, 2020, MIOSHA issued new emergency rules that outlined COVID-19 safety requirements for employers.  MIOSHA claims authority to issue these rules under MCL 408.1021, which states in relevant part, “[MIOSHA] shall promulgate an emergency safety standard . . . if the emergency safety standard is necessary to protect employees.”  These new rules are designed to protect employees from COVID-19 infections and are set to remain in effect for six (6) months, unless extended.  These new rules include industry specific requirements, remote work requirements, and in-person work requirements.

Notably, MIOSHA is no longer requiring temperature checks in industries where they were previously required.  Instead, MIOSHA requires employers to “conduct a daily self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.”

Additionally, in the emergency rules, MIOSHA requires employers to create a policy that prohibits in-person work for employees if the employees can complete their work remotely.  Specifically, the relevant rule states that the “employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”  Due to this rule, employers should document when it determines that it is not feasible for an employee to perform his/her duties remotely.

In accordance with the Governor’s now invalid executive orders, MIOSHA requires businesses that have resumed in-person work to create a COVID-19 preparedness and response plan.  Moreover, employers are required to provide employees with COVID-19 related training, which must address workplace infection-control practices, employee COVID-19 notification requirements, the proper use of personal protective equipment, and how to report unsafe working conditions.

Michigan Department of Health and Human Services

MDHHS recently issued two (2) COVID-19 related orders that have a significant impact on Michigan businesses.  MDHHS claims authority to issue these orders under MCL 333.2253, which states in relevant part, “[MDHHS] by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.”  These two orders were issued on October 5, 2020 and October 9, 2020.

First, the October 5, 2020, emergency order: (1) places limits on gatherings; (2) requires face coverings at gatherings, except as provided in the order’s enumerated list of exceptions; and (3) creates industry specific requirements for food service establishments and organized sporting events.  Importantly, “[a] business . . . or other operation may not assume that someone who enters the business without a face covering falls in one of the exceptions specified” in the order.  However, “[a] business . . . or other operation may . . . accept an individual’s verbal representation that they are not wearing a face covering because they fall within a specified exception.” 

The October 9, 2020, emergency order rescinded the October 5th order.  More specifically, the new order continued the face covering requirements, but made changes and additions to other requirements.  Notably, the October 9 emergency order places restrictions on gatherings.  The order defines a gathering as “any occurrence where two or more persons from, more than one household are present in a shared space.”  However, the order makes an exclusion for “incidental gatherings of persons in a shared space, including an airport, bus station, factory floor, food service establishment, shopping mall, public pool, or workplace.”  In reference to the restrictions for businesses, the order states, “Gatherings of employees in the workplace are prohibited . . . if not strictly necessary to perform job duties.” Moreover, “Where gatherings are necessary, employees must still maintain six feet of distance from one another where practicable.”  In other words, while at work, employees are prohibited from gathering, unless the gathering itself is necessary to perform the employees’ job duties.

What Now?

In lieu of the Governor’s now invalid executive orders, many governmental agencies have stepped up to issue COVID-19 related emergency orders.  These orders provide clarity to a situation that left business owners confused and weary about enforcement.  While currently enforceable, it is important to watch for legal challenges to these orders.

For advice and consultation on how to comply with COVID-19 requirements, or any other employment or labor law matter, employers are strongly encouraged to contact experienced labor and employment counsel.