“Of no continuing legal effect”—What to Consider as Your Business Moves Forward After the Michigan Supreme Court’s Decision on Executive Orders

On October 2, 2020, the Michigan Supreme Court issued its opinion in In re Certified Questions, Docket No. 161492, which essentially eliminated the Governor’s authority to issue any executive orders related to COVID-19 after April 30, 2020. While there was initially some debate over the effective date and precedential impact of the opinion, the Court made clear on October 12, 2020, in a related challenge to the Governor’s authority brought by the Legislature that the executive orders are “of no continuing legal effect.”

Without any effective executive orders in place, are businesses and public bodies free to regulate their workplaces as they see fit without any guidelines or restrictions? No. While the executive orders issued before October 2, 2020, are no longer effective, there are several other sources of law and regulations that businesses and public bodies should monitor and review.

• Department of Health and Human Services (“DHHS”) Epidemic Orders

Citing its authority under the Public Health Code, DHHS has issued several epidemic orders since the Supreme Court’s ruling, including the most recent October 9, 2020, order that addresses gathering restrictions (including in the workplace), face-covering requirements, required protection measures for workers, and contact tracing requirements for certain businesses. DHHS has also issued orders related to reporting probable or confirmed COVID-19 cases in schools, congregate care and juvenile justice, as well as residential care.

The Michigan Supreme Court’s decisions on the Governor’s authority do not directly impact DHHS’s authority to issue these orders. As a result, these orders are currently binding and enforceable (and will be until a court rules otherwise if such a challenge is brought).

• Local Health Department Epidemic Orders

Several local health departments have issued epidemic orders under the authority of the Public Health Code. These orders are also currently binding and enforceable and should be reviewed for applicability and compliance.

• MIOSHA and “general duty” violations

While MIOSHA has not issued any new orders or regulations, it is worth noting that MIOSHA has been citing employers under the “general duty clause”, which requires employers to provide a workplace that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. Failing to comply with required health and safety measures could result in such citations from MIOSHA.

• Emergency Administrative Rules

While we have not yet seen many state departments or agencies promulgating emergency rules (although DHHS has previously done so in connection with its earlier epidemic orders), such authority exists and the State may be looking into utilizing this source of authority to fill the gaps after the Supreme Court’s order. Emergency rules can be in place for up to six months under the Administrative Procedures Act.

• Legislative Changes

With the Supreme Court’s decision, the Legislature along with the Governor could work together to implement any number of new measures to address COVID-19. Indeed, there are efforts already underway on some fronts. In addition, because there are a number of issues surrounding the effectiveness of the executive orders between April 30 and October 2, the Legislature is already moving some legislation to address such issues. For example, SB 1108 addresses the Open Meetings Act and meetings held during that time frame. Other changes, both retroactive and prospective, are likely to be coming in the near future. Make sure your business or public body is keeping up-to-date with the latest changes that might impact you.

• Federal Guidance

Although guidance coming from the Centers for Disease Control and Prevention and other federal agencies has not been mandatory, such guidance and recommendations are oftentimes the basis for local orders as well as just good practice from an employment standpoint to help keep your employees safe and healthy as well as to help reduce potential liability.

What else should you be doing?

• Review your COVID-19 plans and policies in light of any new requirements from DHHS and local health departments;
• Review any actions you have taken in reliance on an executive order issued between April 30 and October 2 (e.g., virtual meetings by a public body, remote notary policies, unemployment issues, etc.) to determine whether any further action is required;
• Keep up-to-date with new orders and rules coming from the executive branch as well as from the Legislature.
• Be aware that there are likely to be new legal challenges raised over new orders issued to address COVID-19, including challenges to DHHS’s authority (or to local health department’s authority) to issue their epidemic orders, which may impact the validity or enforceability of such orders.

For more information about the Michigan Supreme Court Ruling and existing regulations, please contact Courtney Kissel (248-203-0743 or ckissel@dykema.com).