Kerr Russell, as of the date of this publication, is informing clients and friends of the firm that they are legally obligated to continue to comply with applicable COVID-19 workplace safety standards and valid state and local public health department orders, notwithstanding the Michigan Supreme Court’s opinion of October 2, 2020 invalidating the Governor’s COVID-19 Executive Orders.

The Supreme Court’s decision does not mean that businesses and individuals in Michigan may return to pre-COVID-19 behavior or ignore Executive Order standards which have an independent legal basis. Employers, businesses, and other organizations should seek advice from legal counsel on how these developments may impact them, before making any changes to COVID-19 procedures.

1. What did the Michigan Supreme Court rule on October 2, 2020?

The Michigan Supreme Court unanimously ruled (7-0 vote) that the Governor lacked authority under the Emergency Management Act of 1976, MCL 30.401 et seq., (the “1976 Act”) to issue or renew Executive Orders related to the COVID-19 pandemic beyond the Legislature’s approved extension through April 30, 2020. Additionally, the Supreme Court ruled (4-3 vote) that the Emergency Powers of the Governor Act of 1945, MCL 10.31 et seq., (the “1945 Act”) is an unconstitutional delegation of legislative authority to the executive branch. The Supreme Court’s rulings mean that the Governor never had the authority to issue any Executive Orders under the 1945 Act (whether or not related to COVID-19), and that all Executive Orders which were issued or renewed beyond April 30, 2020 are invalid and legally unenforceable under the 1976 Act.

2. When is the Supreme Court’s opinion effective?

News and social media sources have reported differing views among legal commentators as to when the Supreme Court’s opinion becomes effective. While the Supreme Court could have stated in its opinion that its ruling would take immediate effect, it did not do so. The Governor and the Director of the Michigan Department of Health and Human Services filed a motion on October 5, 2020 asking the Supreme Court to confirm that its October 2, 2020 opinion does not become effective until between 21 days (October 23, 2020) and 28 days (October 30, 2020) after its issuance per Michigan Court Rule 7.315(C)(2)(a); they also seek to delay any precedential effect of the opinion during that time period. This view invokes the normal process under which Supreme Court opinions become effective, even though procedurally the issue was raised by questions certified by the U.S. District Court for the Western District of Michigan. The motion asserts the Governor’s right to seek rehearing of the October 2, 2020 decision. If such a motion is filed and granted by the Court, the effective date of the opinion will be delayed while the Court rehears the issue unless otherwise ordered by the Court.

As a practical matter, it is anticipated that Michigan’s prosecutors may no longer enforce violations of the Governor’s Executive Orders through criminal prosecutions, nor would Michigan’s courts enforce prosecutions. For example, Michigan’s Attorney General publicly released such an announcement on October 4, 2020. The Attorney General noted that her position is not binding on other law enforcement agencies or Michigan state departments with independent enforcement authority. The Attorney General’s statement is not binding on the courts.

3. Notwithstanding the Supreme Court’s opinion and the Attorney General’s announcement, what legal obligations are in place for Michigan’s residents and businesses specific to COVID-19?

Workplace safety regulations, valid orders of state and local public health departments, and valid orders of other state agencies with independent enforcement authority relative to COVID-19 are legally enforceable and must continue to be complied with, or an enforcement action may be brought for violations.

For example, valid mask mandates issued by state and local public health departments are legally enforceable. However, orders issued by state and local public health departments may be inconsistent with one another, as well as with the Governor’s prior Executive Orders. For example, the Governor’s Executive Order mandating masks (EO 2020-153 issued July 17, 2020) required businesses to post signs instructing customers to wear masks and to refuse entry and services to customers who did not do so. The Michigan Department of Health and Human Services issued its order to this effect on October 5, 2020 which, similar to EO 2020-153, requires businesses to refuse entry to those who fail to wear a mask, unless they fall within an exception (e.g., an individual cannot medically tolerate a face covering, etc.).[1] The MDHHS order does not explicitly require businesses to post signs instructing customers to wear masks, but business should continue to do so. In contrast, Ingham County Health Department order 2020-21 mandating masks, issued on October 4, 2020, imposes the same requirements as the Governor’s Executive Order EO 2020-153. In the event of conflict between applicable state and local public health department orders, residents and businesses should follow the more stringent order which applies, until public health authorities issue other guidance.

Residents and businesses should check to see what, if anything, their local public health departments are doing on the subject of face masks. Some counties (like Macomb County) have said that they will not require that masks be worn, while others (like Wayne County) have said that they will not mandate masks at this time and will wait to see whether the legislature and Governor can agree on a consistent statewide approach to masks. Oakland County issued a mask mandate order, but rescinded it after MDHHS issued its order.

4. What effect, if any does the Supreme Court’s opinion have on compliance with and enforcement of OSHA and MIOSHA workplace safety standards?

The Supreme Court’s opinion does not affect compliance with and enforcement of OSHA and MIOSHA workplace safety standards for COVID-19. These standards are based on the federal Occupational Safety and Health Act of 1970 and the Michigan Occupational Safety and Health Act, respectively, independent of the Governor’s Executive Orders. Consequently, Michigan employers should continue to follow workplace safety standards for COVID-19 even after the Supreme Court’s opinion of October 2, 2020 becomes effective, or they may face enforcement action by workplace regulators. Michigan’s occupational safety standards are available HERE.

5. MDHHS requires that masks always be worn in gatherings. What does this mean for employers?

The MDHHS mask order requires that masks be worn in all gatherings (being generally, a gathering of two or more), with limited exceptions (e.g., an individual cannot medically tolerate a face covering, etc.). The order became effective when issued on October 5, 2020 and will remain in effect through October 30, 2020, unless changed. The order could be read literally to mandate that face masks be worn by every person, in every workplace, even though at least six feet of physical distancing can be consistently maintained. However, this is inconsistent with and contradicted by CDC, OSHA and MIOSHA guidelines, and is even inconsistent with the Governor’s prior Executive Orders, which all say that face masks do not need to be worn in the workplace when at least six feet of physical distancing can be consistently maintained.

Notwithstanding the MDHHS mandate, employers should continue to follow CDC, OSHA and MIOSHA guidelines providing that masks do not need to be worn in the workplace when at least six feet of physical distancing can be consistently maintained. A reasonable basis exists for concluding that the CDC, OSHA and MIOSHA guidelines concerning the wearing of masks in the workplace should apply, not the MDHHS mask mandate. It seems unlikely that the MDHHS would take any enforcement action against an employer which follows the guidelines established by the CDC, OSHA and MIOSHA, being the federal and state agencies primarily responsible for ensuring safety in the workplace, and that any action taken by MDHHS in such circumstances should not be legally enforceable.

6. What impact, if any, does the Supreme Court’s opinion have on an employer’s compliance with EEOC standards relative to COVID-19?

The Supreme Court’s October 2, 2020 decision does not impact an employer’s compliance with the Equal Employment Opportunity Commission (“EEOC”) standards relative to COVID-19. Employers may continue to conduct confidential temperature checks and daily symptom screenings without running afoul of the Americans with Disabilities Act (“ADA”).

Guidance issued by EEOC on March 21, 2020, encourages employers and employees to follow guidance from the CDC as well as state/local public health authorities on how best to slow the spread of COVID-19 and protect workers, customers, clients, and the general public. This guidance further provides that because the relevant public health authorities have acknowledged the community spread of COVID-19, employers are entitled to conduct temperature checks of employees as well as ask employees questions about their symptoms to determine if they have or may have COVID-19. The EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” guidance can be found HERE.

7. Can the Michigan Legislature enact, and can the Governor approve, legislation imposing standards similar to or different from the Governor’s Executive Orders which the Supreme Court has ruled are invalid?

Yes, the Michigan Legislature and Governor may enact legislation imposing standards similar to or different from the Governor’s Executive Orders. Whether the Legislature and Governor will reach consensus on and enact such legislation remains to be seen.

8. “So, now what?”

The Michigan Supreme Court’s decision invalidating the Governor’s COVID-19 Executive Orders and the Attorney General’s announcement that her office will not prosecute violations does not mean that businesses and individuals may now return to pre-COVID-19 behavior without legal consequences. Many COVID-19 workplace safety standards found in the Governor’s Executive Orders continue to apply through OSHA’s and MIOSHA’s independent workplace safety regulatory authority. Orders issued by state and local public health authorities replicate many standards found in the Governor’s Executive Orders. Compliance with CDC standards may be required on the part of employers and businesses generally and particularly by health care organizations rendering patient care. It is advisable for employers, businesses, and other organizations to consult with legal counsel before making any changes to COVID-19 procedures.