Michigan: State Supreme Court Puts COVID-19 Protections in Flux

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October 2, 2020

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On October 2, 2020, the Michigan Supreme Court stated that the Emergency Powers of the Governor Act of 1945 (EPGA) was an unconstitutional delegation of power to the governor, and the Emergency Management Act (EMA) did not grant the governor the power to issue or renew any executive orders related to the COVID-19 pandemic after 28 days without legislative approval. Governor Whitmer has been relying upon the EPGA or EMA to issue over 100 emergency executive orders to manage the impact of COVID-19 on the state. This ruling essentially nullifies those executive orders. There is also a dispute over when the Court’s ruling will go into effect. At the very latest, it will be in effect by October 30, 2020.

In the meantime, state and local agencies are working to fill the gap that is left by the state supreme court’s ruling. For example, the Michigan Department of Health and Human Services (DHHS) issued an emergency order prohibiting certain gatherings based on size (excluding the workplace) and mandating masks in most circumstances (including in the workplace). The order expires October 30, 2020. Counties and localities are also issuing their own emergency orders requiring masks, social distancing, and other protective measures, such as Oakland County, Washtenaw County, and Ingham County.

Additionally, the Michigan Occupational Safety and Health Administration (MIOSHA) adopted an Interim Enforcement Plan providing penalties for an employer’s failure to keep employees safe, such as failure to maintain social distancing or require face coverings. Many of the requirements contained in Governor Whitmer’s executive orders are mirrored in MIOSHA’s guidance.

Employers should continue to monitor the situation closely as changes arise. Keep in mind that whatever requirements remain or are put in place are the minimum requirements for employers to follow; and employers may implement more rigorous standards for keeping employees safe.

Action Items

  1. Review state and local guidance for keeping workers safe in the workplace.
  2. Update safety protocols as applicable.
  3. Have employees trained on required protocols.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2020 ManagEase

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