Judge: Penalties in Whitmer's workplace safety orders excessive

Gov. Gretchen Whitmer's penalties for employers who violate executive orders aimed at keeping workers safe as the state reopens following the coronavirus pandemic went too far, a Michigan Court of Claims judge has ruled.

Associated Builders and Contractors of Michigan and DJ's Lawn Service Inc. argued in a lawsuit filed last month that Whitmer exceeded her statutory authority “by effectively bootstrapping” into Executive Order 2020-97 penalties found in the Michigan Occupational Safety and Health Act, or MIOSHA, Judge Christopher Murray wrote.

The executive order, titled “Safeguards to protect Michigan’s workers from COVID-19,” declares that anyone violating it also defies the act, according to the judge’s ruling. That means violators would face penalties including fines ranging up to $70,000 and a felony conviction punishable by as many as three years in prison, Murray said.

The opinion was issued Thursday.

Whitmer rescinded the executive order on Friday through another one that includes similar language about MIOSHA. It also referenced the state Emergency Management and Emergency Powers of the Governor acts, which each call for violations to executive orders issued under them to be punished as misdemeanors, Murray said.

“There is simply no room within the unambiguous statutory language for adding additional penalties, let alone incorporating different, and more severe, penalties from a separate statutory scheme such as the felony charges and increased fines set forth in MIOSHA,” the judge wrote. “… Any penalties or fines beyond those for misdemeanors that are incorporated into the executive order are void.”

Whitmer’s representatives did not immediately respond to a request for comment Tuesday.

The business lawsuit also listed Attorney General Dana Nessel as a defendant.

In his opinion, Murray said he disagreed with her office’s claim that Whitmer “merely provided guidance to executive branch departments and agencies as to how they should interpret and enforce MIOSHA.”

The workplace safety executive order “did much more than provide guidance and ensure that the law was faithfully executed,” he wrote. “Indeed, the order created scores of new restrictions and demands and attempted to make these new restrictions and demands subject to penalties beyond what the Legislature granted.”

Nessel’s office did not immediately respond to a request for comment Tuesday night.

The Associated Builders and Contractors of Michigan hailed Murray’s decision.

“The court defended Michigan workers … striking down Governor Whitmer’s attempt to weaponize MIOHSA and other state departments against safe job sites that are taking good-faith precautions to combat COVID-19,” said Jeff Wiggins, the group’s state director, in a statement. “This Court of Claims decision allows more than 100,000 craft trades professionals to continue operating safely without the threat of multiple, arbitrary and significant fines or other MIOHSA penalties.”

Murray said his decision does not end the lawsuit. Meanwhile, the rest of Whitmer’s workplace safety executive order “remains enforceable and in effect."

The filing comes as the state gradually reopens and new COVID-19 cases or deaths continue to fall.

Whitmer has lifted Michigan's stay-at-home order and allowed dine-in restaurants, bars, libraries, swimming pools and day camps to reopen with restrictions. Barbers and salons can reopen starting June 15.