Michigan Supreme Court Finds Governor Cannot Issue Orders

On Friday afternoon, the Michigan Supreme Court found that the Governor did not possess authority to issue orders in response to the COVID-19 public health crisis. The Court ruled 4 to 3 that the 1945 Emergency Powers of the Governor Act was unconstitutional and that she could therefore not issue orders past April 30. Prior to that date, the Governor had authority to issue orders under the 1976 Emergency Manager Act (but the Court unanimously agreed the Governor needed the legislature to agree to extend her time to continue to act under that law, which the legislature declined to do).

For almost 7 months I have been providing you with regular updates on the health and safety requirements set forth in the Governor’s Executive Orders. While the Governor has stated her prior Executive Orders remain in effect for 21 days from the date of the October 2, 2020 Supreme Court decision, there is disagreement about that given the process by which the matter ended up at the Michigan Supreme Court. Some attorneys believe the Governor’s orders remain in effect for 21 more days, others believe the effect of the Supreme Court decision is immediate, and still others believe a federal court where the initial lawsuit began has to issue a final order. Indeed we are in uncharted territory on so many legal issues these days.

For now, all employers and venues should continue following the Governor’s Executive Orders. There are two anticipated sources of orders that will continue to impact employers and employees in our State: The Department of Health & Human Services and your local county health department.

The Department of Health & Human Services (DHHS)

Michigan law provides that “[I]f the [DHHS] director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.” MCL 333.2253(1).

DHHS has previously issued orders that incorporate the Governor’s Safe Start, Safeguards to Protect Workers, and Mask Covering Orders (all covered at length in my prior blog posts). It is anticipated DHHS will update its orders to provide detailed health/safety rules.

County Health Departments

As an additional matter, Michigan law (MCL 333.2453) also authorizes directors of your county health department to issue local emergency orders in response to a public health crisis. We have already seen counties in Michigan use this power to order “stay in place” orders in counties where there have been surges on college campuses the past month. Ingham County this morning already issued orders that mirror the Governor’s prior orders with regard to face coverings, gatherings, restaurants, and employee screening requirements. Oakland County has also issued an order requiring that masks be worn in public.

The Practical Result

In the end, every employer, whether governed by Governor Executive Orders, DHHS Orders, or local health department orders, must ensure the workplace is safe. Even without these orders, OSHA and CDC requirements and guidelines should be followed. Failure to do so will expose employers (and venues) to liability. Litigation is already beginning around the country against employers who have not followed best practices and employees have become ill (or employees have exposed family members to the virus as a result of becoming ill from exposure at work). Everyone should work to ensure their workplace or business/organization open to the public is safe.

As always, this update does not constitute legal advice.