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Crain's Detroit Busi N Ess 10t5t2020 Printable CRAIN'S DETROIT BUSI N ESS You may not reproduce, display on a website, distribute, sell or republish this article or data, or the information contained therein, without prior written consent. This printout and/or PDF is for personal usage only and not for any promotional usage. @ Crain Communications lnc. october 04,2o2o 06:38 PM I UeOnreo 41 MINUTES AGO Whitmer's COVID executive orders are out. Here are the pandemic restrictions still in. CHAD LIVENGOOD tr [ " Multiple legal avenues available to continue restrictions on business activity " None are nearly as broad and sweeping as a governor's executive orders " Counties are issuing orders after state Supreme Court ruled against Whitmer Chad Livengood/Craln's Detroit Businoss Gov. Gretchen Whitmer's executive order requiring customers and workers to wear masks inside indoor businesses is no longer enforceable after the Michigan Supreme Court struck down the law she used to impose the order, Attorney General Dana Nessel said Sunday. Michigan Attorney General Dana Nessel announced Sunday that she will not enforce any of Gov. Gretchen Whitmer's pandemic executive orders after the Michigan Supreme Court narrowly ruled that the governor has exceeded her authority for the past five months in managing the coronavirus pandemic. But that doesn't mean all government rules and regulations aimed at mitigating the spread of the airborne virus have gone away for businesses, schools and individuals. From the state public health code to business licensing and local health orders, there are multiple legal avenues for continued restrictions on business activity, though none nearly as broad and sweeping as a governor's executive orders. The state Supreme Court's four Republican-nominated justices ruled Friday in a 4-3 opinion that "the executive orders issued by the governor in response to the COVID-19 pandemic now lack any basis under Michigan law." Depending on how the Whitmer administration proceeds, there may be a plethora of a new legal challenges to trying to transfer the governor's executive orders to administrative rules and regulations. 1t8 10t5t2020 Printable Here are five questions and answers about what may happen next: Do Whitmer's executive orders remain in effect until Oct. 23 - 21 days after the state Supreme Court ruling - as she asserted Friday? The governor cited a Michigan Supreme Court rule that rulings from the high court do not take effectfor 21days to give the losing party a chance to seek a rehearing. "We believe the 21-day rule applies," Nessel spokesman Ryan Jarvi said Sunday in an email to Crain's. "The AG is just choosing not to exercise her prosecutorial discretion during this 21-day time period." The high court's decision did not indicate otheruvise. The ruling was a response to certified questions from U.S. District Judge Paul Maloney in a federal lawsuit challenging Whitmer's spring ban on elective medical procedures that was brought by the Mackinac Center Legal Foundation. "As a practical matter, this is a final decision of the issues that the Supreme Court considered," said Maria Dwyer, a labor and employment law attorney at Clark Hill and managing member in charge of the firm's Detroit office. As soon as thls week, Maloney could enforce the Supreme Court ruling on just the executive orders at issue in his case or extend them to all of the executive orders, said Patrick Wright, director of the Mackinac Center Legal Foundation. "Assuming the governor wants to have something in place for 21 days, what person is going to enforce something the Supreme Court has said is clearly unconstitutional?" said Wright, who also is vice president for legal affairs at the Mackinac Center for Public Policy, a Midland-based conservative think tank. Wright said Whitmer's claim of a 21-day continued enforcement window is pointless, especially after the attorney general said she won't pursue criminal enforcement of the orders. "A sports analogy would be essentially blitzing the quarterback when they're kneeling down in victory formation," Wright said. What powers do state agencies have to restrict business capacities or impose other regulations? The Administrative Procedures Act gives regulatory agencies such as the Department Health 2t8 101512020 Printable and Human Services, the Department of Licensing and Regulatory Affairs and the Michigan Occupational Safety and Health Administration the abilily to impose "emergency" rules for a period of six months. Whitmer used this law in 2019 to temporarily ban retailers from selling flavored nicotine products for e-cigarette vaping, arguing it was an immediate threat to public health that necessitated bypassing the Legislature. Former Gov. Rick Snyder used these executive branch powers in 2014 to impose emergency rules on Las Vegas-style charitable gambling venues that were exploiting charities, said attorney Steve Liedel, managing member of the Dykema law firm's Lansing office. These emergency rules can remain in effect for six months until a department can properly promulgate administrative rules. "There are many things in these executive orders, I think, that could have been justified through the regular rule-making process," said Brian Calley, president of the Small Business Association of Michigan. "The problem is, the regular rulemaking process didn't happen - and that's what I'm hoping will be the outcome of this period here where we've got some uncertainty." MDHHS Director Robert Gordon has already issued several emergency orders requiring mandatory COVID-19 testing for nursing home residents and workers, migrant farm and agricultural workers and prison guards in state prisons. "To the extent that anything affects public health, the Department of Health and Human Services director has pretty broad authority under the public health code to issue health and safety rules," said Liedel, a former chief legal counsel under then-Gov. Jennifer Granholm. ln recent weeks, MIOSHA has been fining businesses that do not have COVID-19 preparedness and response plans, don't have employees wearing masks or have failed to do daily health screenings of workers. MIOSHA's definition of a safe workplace as it relates to COVID-19 "comes from the executive orders," Calley said. The agency will need to write new administrative rules that adopt new COVID-related standards, said Michael Huff, a corporate attorney at Mika Meyers PLC in Grand Rapids. 3/8 101512020 Printable "l think the answer is we have a lot more litigation coming in the next few months to figure out how these administrative agencies are legally authorized or not authorized to continue to act in this space in the midst of a pandemic," Huff said. "Which is not going to be the answer some people want to hear. On the other hand, I think for some businesses this has just become a way of life at this point." During a Facebook Live briefing Saturday for SBAM members, Calley advised them against immediately dropping all COVID-related workplace safety protocols. "Probably in the near term, the smart thing to do would be to let this sort out a bit before you make drastic changes," said Calley, a former lieutenant governor. $peaiafi Ed&tiocl CIf T"[te $irmaifi Busflness Eriefang rrira- -- lSmall Business Assoeiation of l\4ichigan was L.ive Share What can counties and schools do? County-level health departments retain significant powers under public health laws to order businesses to take measures to protect the health and safety of their patrons. For example, if a COVID-19 outbreak can be traced to a particular restaurant or other public- facing business, the county health department could shut it down for a period of time, legal experts said. State law allows county health officers to issue orders "during the epidemic to insure continuation of essential public health services and enforcement of health laws." Oakland County's health department issued an order Saturday requiring mask use among residents when they're in public places. The order, which mirrors Whitmer's mask orders, 4t8 10t5t2020 Printable applies to schoolchildren while inside school buildings Oakland County is planning to issue additional health orders "in the coming days to cover capacity at restaurants, bars, employee health screenings and other public health concerns," according to a news release. On Sunday, lngham County's health officer issued four emergency orders that adopted Whitmer's mask mandate, require employers to screen employees for COVID-19 symptoms, setting restaurant and bar capacities at 50 percent or 125 people, whichever is less. lngham County also set capacity limits for outdoor event venues at a maximum of 1,000 attendees and no more than 30 percent of seating capacity. "Health and science experts agree that facial coverings, social distancing and health screenings are critical to controlling the virus," lngham County Health Officer Linda Vail said in the release. "We have made too much progress to regress. We are working hard to get our young people back to school, keep our businesses and government open, and make progress in our economic recovery." ln recent weeks, other local health departments have issued several public health orders that go beyond Whitmer's statewide edicts. Ottawa County's health department quarantined an entire campus community at Grand Valley State University in Allendale after a spike in COVID-19 cases. On Friday, Washtenaw County's health officer issued an order limiting indoor social gatherings to 10 or fewer people in a private residence in Ann Arbor and Ypsilanti, the respective homes of the University of Michigan and Eastern Michigan University. Lenawee County's health officer issued a similar order in September after a coronavirus outbreak on the campus of Adrian College. lngham, lsabella and Ottawa counties also have limited indoor gatherings to 10 or fewer people.
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