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The Michigan Supreme Court’s opinion in Midwest Inst of Health, PLLC v Governor of Michigan  (In re Certified Questions from the United States Dist Court), No 161492, ___ Mich ___, ___ NW2d ___ (Oct 2, 2020), stripped Governor Whitmer of her authority to issue executive orders under the Emergency Powers of the Governor Act of 1945 (EPGA). Effective October 2, 2020, all of the governor’s orders entered after April 30, 2020, are void and unenforceable. The immediate effect of the court’s ruling was confirmed on October 12, 2020, when the court denied a motion filed by Governor Whitmer and the director of the Department of Health and Human Services (MDHHS) seeking clarification on the effective date of the court’s ruling. Meanwhile, the attorney general’s office had already stated that it would “no longer enforce the governor’s executive orders through criminal prosecution,” but that the attorney general’s decision was “not binding on other law enforcement agencies or state departments with independent enforcement authority.”

Although they are significant, these developments do not mean Michigan employers will be unregulated as it relates to COVID-19.

MDHHS Orders

Beginning on October 5, 2020, MDHHS issued several emergency health orders. MDHHS issued the orders pursuant to Michigan’s Public Health Code’s regulations on epidemics, which grant the department’s director authority to issue emergency orders “to protect the public health,” including “prohibit[ing] the gathering of people for any purpose” and “establish[ing] procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.” MCL 333.2253(1).

The October 5 emergency order required face coverings in most public settings and limited the number of individuals who could attend certain types of “gatherings.” On October 6, the department issued three orders relating to mandatory reporting of COVID cases in school settings and restrictions for congregate care, residential care, and juvenile justice–related businesses.

Most recently, on October 9, MDHHS issued a second order on face coverings and gatherings, continuing to prove that it intends to issue emergency health orders in line with what Michigan businesses previously saw under the governor’s executive orders. The October 9 order rescinds the October 5 order, expands protections, and provides needed clarification. MDDHS also produced an infographic and a fact sheet explaining some of the basic requirements of its orders.

Definitions

The October 9 order includes specific definitions, including the following:

• Close contact means being within six feet of an individual for 15 minutes or longer.
• Face covering means a covering that covers at least the nose and mouth.
• Employee means that term as defined in MCL 408.932 and also includes independent contractors.
• Gathering means any occurrence in which two or more people from more than one household are present in a shared space.
• Symptoms of COVID-19 include fever, an uncontrolled cough, new onset of shortness of breath, or at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain.

Attendance and Capacity Limitations

Although the order keeps in place the same attendance limitations on indoor and outdoor gatherings at private, public, and other venues, it adds specific capacity limitations as well, including the following:

• A gathering at a retail store, library, or museum may not exceed 50 percent of the total occupancy limit established by the state fire marshal or a local fire marshal (except in Region 6). Region 6 includes the following counties: Alpena, Antrim, Benzie, Charlevoix, Cheboygan, Crawford, Emmet, Grand Traverse, Kalkaska, Leelanau, Manistee, Missaukee, Montmorency, Otsego, Presque Isle, Roscommon, and Wexford.
• Gatherings at recreational sports and exercise facilities, such as gymnasiums, fitness centers, recreation centers, exercise studios, bowling centers, roller rinks, ice rinks, and trampoline parks are prohibited if they exceed 25 percent of the total occupancy limits established by the state fire marshal or a local fire marshal, or if there is less than six feet of distance between each workout station.
• Gatherings at non-tribal casinos may not exceed 15 percent of the total occupancy limits established by the state fire marshal or a local fire marshal.

Likewise, gatherings in waiting rooms at all businesses, including outpatient healthcare facilities, veterinary clinics, and personal care services, are prohibited unless the facility can maintain six feet of distance between patrons. The same is true for gatherings at professional sporting and entertainment venues, stadiums, and theaters.

Worker Protections

Critical for businesses, the order implements protections for workers found in the governor’s executive orders. Face coverings are mandatory at all businesses with indoor operations, with the same limited exceptions in place, and “gatherings of employees in the workplace are prohibited” if

• the gathering is not strictly necessary to perform job duties, provided that, when gatherings are necessary, employees must maintain six feet of distance from one another where practicable;
• employees not otherwise required to wear face coverings cannot maintain six feet of distance from others; and
• employees not otherwise required to wear face coverings occupy the same indoor shared space, such as conference rooms, restrooms, and hallways.

Food Service Regulations

Food service establishments are also subject to specific requirements, including the following:

• prohibiting gatherings in indoor common areas where people can congregate, dance, or otherwise mingle
• maintaining six feet between parties
• limiting seating capacity to 50 percent
• deep cleaning consistent with Food and Drug Administration and CDC guidance in the event an employee is confirmed positive for COVID-19 or shows symptoms of COVID-19 while at work

Employee Quarantine and Screening

Additionally, employees who are subject to a recommendation to isolate or quarantine consistent with CDC guidance, who have been instructed to remain home by a health or public health professional, or who are awaiting a COVID-19 test or the results of a COVID-19 test after having symptoms of COVID-19 must not be present in a gathering at work until the employee is advised by a health or public health professional that they may return to work, or all of the following conditions are met:

• 24 hours have passed since the resolution of fever without the use of fever-reducing medications
• 10 days have passed since their symptoms first appeared or since they were administered a COVID-19 test that yielded the positive result, if applicable
• other symptoms have improved

With regard to screenings, business that have in-person operations must conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms of COVID-19 and suspected or confirmed exposure to people with possible COVID-19. Businesses open to the public must post signs at entrances instructing customers of their legal obligation to wear a face covering while inside the store and informing customers not to enter if they are or have recently been sick.

Enforcement and Penalties

MDHHS’s October 9 order is effective immediately and remains so through October 30, 2020. The order allows local health departments to enforce its terms. Violations are punishable by a civil fine of up to $1,000 for each violation or day a violation continues.

City of Detroit's Adoption of Governor Whitmer’s COVID-19 Orders

Similarly, on Friday, October 8, 2020, Detroit Mayor Mike Duggan announced that the city is in the process of adopting all of Governor Whitmer’s COVID-19 orders within the next two weeks, and noted, “what we are doing is guaranteeing [that] Detroiters will have the protection of [those] orders no matter what happens in the courts.” Various counties, including Washtenaw County and Ingham County, also issued orders after the supreme court’s opinion was announced. Employers can anticipate that in the vacuum left in the wake of the court’s action, Michigan counties will also continue to adopt their own orders (which some had done at the outset of the pandemic).

MIOSHA Interim Enforcement Plan and Emergency Rules

In addition to MDHHS, the Michigan Occupational Safety and Health Administration (MIOSHA) has adopted an interim enforcement plan explaining how it will cite employers for COVID-19 workplace hazards, as well as Emergency Rules issued October 14, 2020, and in effect for six months. The interim enforcement plan provides examples of General Duty Clause citations for failure to maintain social distancing and failure to require face coverings. That plan also has an example citation for failing to implement a protocol to protect employees from coworkers with COVID-19. Consequently, many of the requirements contained in the governor’s executive orders are likewise found in MIOSHA’s guidance. The Emergency Rules include provisions on exposure determination for all employers, require a COVID-19 preparedness and response plan for all employers, outline required infection prevention measures and health surveillance requirements, describe workplace controls and PPE requirements, outline industry-specific requirements like the ones in previous executive orders, and require training and record keeping.

Legislation Passed

Finally, now that Governor Whitmer can no longer enact executive orders under the EPGA, there is some chance that the executive branch and legislative branch will work collaboratively together to find a solution in the interest of Michigan’s public health. In the early hours of October 14, 2020, the Michigan House and Senate passed four bills on COVID-19, including legislation providing immunity for business and employers. One bill extended unemployment insurance benefits to 26 weeks for 2020 as was prescribed under the governor’s now-rescinded executive orders. We expect to see more legislative action as 2020 comes to a close.

As with anything 2020, this is a rapidly evolving situation, so be sure to monitor developments closely.