After Court Ruling, New Emergency Orders Issued to Stem Virus in Michigan

By | October 12, 2020

A week after Michigan’s Supreme Court ruled Gov. Gretchen Whitmer lacked the authority to act unilaterally to slow the spread of the coronavirus, the state health department issued its own emergency order keeping much of the restrictions she imposed in place.

The order from Michigan Department of Health and Human Services Director Robert Gordon comes under the state’s Public Health Code.

Michigan Supreme Court justices in a 4-3 vote on Oct. 2 declared the 1945 law repeatedly used by the Democratic governor to respond to the pandemic unconstitutional.

The ruling has jeopardized months of restrictions, including some that temporarily shut down businesses and limited gatherings, while COVID-19 continues to flare up around the state.

More than 132,000 virus cases have been confirmed in Michigan and more than 6,800 people have died from the virus, according to the state.

Impact on Workers’ Comp Benefits for Healthcare Workers, Others

Michigan Gov. Gretchen Whitmer’s June. 17, 2020, order clarifying eligibility for workers’ compensation benefits for workplace exposure to COVID-19 is presumably overturned by the state supreme court’s ruling that the Emergency Powers of the Governor Act (EPGA) of 1945 is unconstitutional.

Acknowledging the ongoing litigation over the limits of her emergency powers during the COVID-19 under the EPGA, Whitmer issued executive order No. 2020-125 under both the EPGA and the Emergency Management Act. In its Oct. 2, ruling, however, the Michigan Supreme Court also found that the governor “lacked the authority to declare a ‘state of emergency’ or a ‘state of disaster’ under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic.”

Whitmer’s June 17 executive order applied to “COVID-19 response employees” and released such employees that contract COVID-19 from the requirement to prove they contracted it in the course of their employment in order to be eligible for workers’ compensation wage-loss benefits if the disease prevents them from performing their job duties.

The order states that a “COVID-19 response employee means an employee whose job responsibilities require them to have regular or prolonged contact with COVID-19 in the course of their employment.” Under the order, impacted employees include healthcare workers, emergency response personnel, firefighters, law enforcement officers and penal institution workers, among others.

Michigan was one of several states that either amended rules or issued executive orders to expand workers’ compensation eligibility in response to COVID-19. Other states include Arkansas, Florida, Illinois, Kentucky, Michigan, Missouri, North Dakota and Washington.

Gordon said the legal authority behind the Oct. 9 order was enacted by the state Legislature following the Spanish Flu outbreak of 1918 and specifically deals with epidemics.

His order requires masks to be worn at any gatherings occurring at businesses, offices, schools, childcare facilities, sporting events and other non-residential events. Businesses also cannot admit individuals who do not wear a face covering, and there are few exceptions.

Whitmer’s earlier mask requirement continues to apply for organized gatherings larger than 10 people indoors and 100 outdoors.

“Cases are rising, and the science is clear,” Gordon said. “Masks reduce the spread of COVID-19. Social distancing reduces the spread of COVID-19. Public action is critical to saving Michiganders’ lives.”

The Michigan Supreme Court did not make clear when Whitmer’s order would end. The court’s action came on the same day that Whitmer’s foes submitted more than 539,000 signatures in a bid to repeal the ’45 law.

Republicans in the state Legislature have said a 1976 law gives lawmakers a say in any emergency declarations after 28 days.

Tony Daunt, executive director of the conservative advocacy group, Michigan Freedom Fund, said Gordon’s order signals that Whitmer is “intent on finding ways around” the Supreme Court’s ruling.

“I really fail to see how the governor can lose before the Supreme Court and then direct a subordinate to go about doing what she’s been told is illegal and unconstitutional,” Daunt said.

“There’s obvious merit in reviewing the various orders and seeing what may be worth keeping in,” he added.

Detroit Mayor Mike Duggan has cited Michigan’s Public Health Code of 1978 as the city issued its own emergency order on COVID-19 restrictions that align with Whitmer’s.

Duggan said that code gives local health officers the right to act in an epidemic.

In Detroit, restaurants still have to limit capacity to 50%, while capacity at its three casinos is limited to 15%. Masks are required in public and on public transportation. Bowling alleys, theaters, gyms and other venues are allowed to operate as long as they comply with rules for workplaces and gatherings, according to the order by Chief Public Health Officer Denise Fair.

Duggan praised Whitmer’s leadership on COVID-19 guidance since she issued stay-at-home orders in March.

“We have always had the right to operate as a city,” Duggan said. “We haven’t done it because of the leadership. What we are going to do is make sure this city has certainty and continuity because what we are doing is making sure the steps the governor has taken continue to protect the city of Detroit.”

Detroit has reported more than 14,680 confirmed cases and 1,541 deaths. Duggan said Detroit residents are being infected with the virus at half the rate of suburban residents and others across the state.

“But if an African American gets COVID-19, African Americans are two to three times more likely to die of it than Caucasians,” he said.

Then, in a barely veiled dig at President Donald Trump, Duggan added: “I really want to be clear what we all know, that if somebody in Detroit gets COVID-19, there’s no helicopter coming to take you to Walter Reed Hospital for the latest experimental treatment.”

Last week, a presidential helicopter took Trump from the White House lawn to the hospital in nearby Bethesda, Maryland, where he spent several days getting treated for the coronavirus.

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