QUESTION: How does Michigan Supreme Court’s invalidation of all the Governor’s COVID-19 Executive Orders affect physician practice? Do physicians have the same workplace safety obligations to their employees?

ANSWER: The invalidation of the Governor’s COVID-19 Executive Orders does very little, if anything, to change physician practice and workplace safety in this pandemic environment.

The Michigan Supreme Court, in a fractured opinion, held on October 2, 2020 both that the: (1) Governor lacked authority under the Emergency Management Act of 1976 to issue or renew Executive Orders related to the COVID-19 pandemic beyond the Legislature’s approved extension through April 30, 2020; and (2) Emergency Powers of the Governor Act of 1945 is an unconstitutional delegation of legislative authority to the executive branch. The net effect of these rulings is that the Governor never had the authority to issue any Executive Orders under either law after April 30, 2020. The Governor’s office and others initially reported that the October 2, 2020 rulings did not take effect until the end of October. The Michigan Supreme Court has since ruled that this is incorrect. All the COVID-19 Executive Orders have been invalid and legally unenforceable since October 2, 2020.

All other workplace safety regulations, orders of state and local public health departments, and valid orders of other state agencies remain legally enforceable and must continue to be complied with. For example, valid mask mandates issued by state and local public health departments are legally enforceable as are OSHA and MIOSHA workplace safety standards for COVID-19. The Michigan Department of Health and Human Services quickly issued an order on October 5, 2020 which, like EO 2020-153, generally requires businesses to refuse entry to those who fail to properly wear a mask.

The Supreme Court’s October 2, 2020 ruling also does not impact an employer’s obligation to comply EEOC standards relative to COVID-19. Employers may continue to conduct confidential temperature checks and daily symptom screenings without running afoul of the Americans with Disabilities Act (“ADA”). Guidance issued by EEOC on March 21, 2020, encourages employers and employees to follow guidance from the CDC as well as state/local public health authorities on how best to slow the spread of COVID-19 and protect workers, customers, clients, and the general public. This guidance further provides that because the relevant public health authorities have acknowledged the community spread of COVID-19, employers are entitled to conduct temperature checks of employees as well as ask employees questions about their symptoms to determine if they have or may have COVID-19. The EEOC “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act,” guidance can be found at: https://www.eeoc.gov/laws/guidance/pandemic-preparedness-workplace-and-americans-disabilities-act.

The best advice for medical practices is to continue to maintain their COVID-19 procedures even though there are no longer Executive Orders mandating some or all of them.