This article appeared in the November 2020 issue of MiMfg Magazine. Read the full issue and find past issues online.

Clarity and certainty have been in short supply in 2020 and a decision issued by the Michigan Supreme Court on 10/2/20 caused even greater confusion for employers struggling to comply with an onslaught of new regulations and government orders issued in response to the COVID-19 pandemic. In addition, an array of new orders and rules issued in the last month at several levels of government left many employers’ heads spinning.

The Ruling

The Michigan Supreme Court’s ruling in In re Certified Questions (Midwest Inst of Health v. Governor) addressed the challenge Republican legislative leaders posed to Governor Gretchen Whitmer’s use of emergency powers under the Emergency Powers of the Governor Act of 1945 and the Emergency Management Act of 1976 to declare perpetual states of emergency related to the COVID-19 crisis without the involvement of the Legislature. According to MMA Premium Associate Member Kerr Russell, “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 4/30/20 are invalid and legally unenforceable under the 1976 Act.”

When the ruling was first made, there was disagreement on the effective date but the Court clarified on 10/12/20 that the ruling was effective when made.

The Race to Replace

All levels of government, it seemed, set to work immediately to replace public safety orders intended to mitigate virus transmission from local ordinances to the state level.

The Michigan Department of Health and Human Services (MDHHS) issued a number of orders citing authority under the Public Health Code, including restrictions on public gathering, face-covering requirements, self-isolation guidelines and imposing workplace safety requirements on employers. The Administration also made clear that the “general duty clause” of the Michigan Occupational Safety and Health Act (MIOSH Act), which obligates employers to provide a safe workplace, provides an avenue for enforcing health and safety measures.

A number of county health departments issued orders subsequent to their authority under the Public Health Code as well, mandating restrictions similar to those that were imposed by the Governor’s previous orders.

On 10/14/20, MIOSHA issued emergency rules that modified workplace safety regulations for employers, with specific requirements for each industry.

Legislative Action

The Legislature also jumped to provide clarity and consistency and to preserve vital benefits for employers and workers impacted by the pandemic.

In the wee hours of 10/14/20, MMA-supported bills passed to restore flexibility in unemployment claims during the pandemic, ensuring access to federal funding and protecting employers from a spike in their unemployment taxes.

A hard-fought deal also materialized to enact critically important protections for employers from civil tort claims and MIOSHA actions as long as the employer follows all relevant statutes, rules, regulations and orders that were in legal effect at the time.

Clarity Moving Forward

While several matters have been settled in the wake of the Michigan Supreme Court’s ruling, it is likely that new challenges will arise and regulations will evolve as legislative, department and local orders are issued.

MMA will continue to champion for the industry as we are in regular and direct contact with both the Whitmer Administration and legislative leaders to advocate for manufacturing interests.

Contact David Q. Worthams

Director of Human Resource Policy
Call 517-487-8511
E-mail worthams@mimfg.org