COVID Order Update

Given that we have had some recent upheaval in the status of the COVID-19 rules and regulations in place in the State of Michigan, we thought we would offer a short summary of recent developments, while highlighting certain aspects of active orders which we think you should be aware of.

October 2, 2020 Michigan Supreme Court Ruling. You may have seen on the news that earlier this month the Michigan Supreme Court invalidated many of Governor Whitmer’s emergency orders. As you might be aware, the State of Michigan had two Emergency Powers acts: One enacted in 1976 (the Emergency Management Act, or the EMA) and one in 1945 (the Emergency Powers of the Governor Act, or the EPGA). The EMA requires agreement with the Legislature to continue a State of Emergency more than 30 days; the EPGA did not. In the spring, Gov. Whitmer declared an Emergency with regard to COVID-19 under both Acts, and the Legislature approved the initial extension of the State of Emergency with respect to the EMA. Under this State of Emergency, Gov. Whitmer issued many orders and restrictions aimed at curbing the spread of COVID-19. However, Gov. Whitmer and the Legislature did not agree on extending the State of Emergency past April 30. Thereafter, she relied solely on the EGPA, which did not require Legislature approval, to serve as the foundation for the restrictions and orders.

On Oct. 2, the Michigan Supreme Court ruled that the EPGA was in violation of the Michigan Constitution. As a consequence, the EPGA could not provide a basis for the Governor to exercise emergency powers. This ruling invalidated each of her Executive Orders issued under that authority as they applied after April 30.

MDHHS Orders. In response to the ruling, on Oct. 9, the Michigan Department of Health and Human Services issued several Epidemic Orders pursuant to MCL 333.2226(d). Under this statute,  MDHHS may “[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department.” MCL 333.2226(d).

You should be aware that under the MDHHS Orders, (a) masks are required in gatherings of two or more people (b) capacity limits apply to indoor and outdoor gatherings; (c) employees cannot go to work with others if they are in quarantine because of COVID-19 exposure, symptoms or test results. A helpful infographic is available here.

Recent Legislation. The Michigan Legislature has passed a package of bills related to COVID relief in the last week. Chief among them  is a provision exempting employers from liability for an employee’s exposure to COVID-19 as long as they are in compliance with all federal state, and local statutes, rules and regulations, executive orders, and agency orders related to COVID-19. This must still be signed into law by the Governor, but we expect this to happen shortly.

As always, we are available to assist you in understanding any aspects of these orders as you may require.

By: Anne Lipp, Senior Associate