The Uncertainty Regarding Michigan’s COVID Executive Orders

In Michigan, Governor Whitmer has issued 192 executive orders related to the COVID pandemic, many of which affect Michigan workplaces. On October 2, 2020, the Michigan Supreme Court opined that Governor Whitmer lacked the authority under the Emergency Powers of the Governor Act and/or the Emergency Management Act to issue or renew any COVID-related executive orders after April 30, 2020. The Court’s decision will effectively invalidate those orders.

There will be further developments in this area, and employers are cautioned to continue complying with the existing executive orders for now. Specifically, three issues will impact what employers must do:

• First, the Michigan Supreme Court’s order is not effective until October 23, 2020, as the Governor has 21 days to seek a rehearing of the Court’s decision. The executive orders remain effective until that date.

• Second, in the next 21 days, the Governor and the Legislature are expected to negotiate about a framework that would allow the executive orders to remain valid.

• Finally, there are other avenues, such as under the Michigan Public Health Code, for the Governor and local county authorities to seek to reissue the current executive orders using a different basis of authority than was at issue in the Court’s decision.

In light of the foregoing, Michigan employers should consider following a wait-and-see approach before making significant changes to their COVID-related safety precautions. If you have any questions about employer obligations in Michigan, please contact a member of Honigman’s Labor and Employment Department.