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State regulators say COVID-19 business fines, rules still in place after high court ruling

Beth LeBlanc
The Detroit News

State regulators say citations they've issued to businesses for non-compliance with COVID-19 rules will not be rescinded, even in light of a Michigan Supreme Court decision upending Gov. Gretchen Whitmer's executive orders back to April 30. 

What's more, employers must still comply with workplace safety protocol provided by the Centers for Disease Control and Prevention, public health guidance and the federal Occupational Safety and Health Administration, said Sean Egan, director of COVID-19 Workplace Safety. 

"MIOSHA will continue to operate within its statutory authority to protect Michigan’s workers and keep workplaces safe," Egan said. 

The Michigan Supreme Court on Friday was unanimous in ruling Whitmer had no authority under a 1976 emergency law to extend her emergency declaration past April 30 without approval from the Legislature. 

The court split 4-3 in ruling finding that a separate law Whitmer was using to issue executive orders, the 1945 Emergency Powers of the Governor Act, was unconstitutional because it was an unlawful delegation of legislative powers.

The Michigan Occupational Safety and Health Administration has issued thousands of dollars in citations to Michigan businesses for failing to implement COVID-19 precautions under the agency's "general duty clause," which requires employers to provide workspaces free of hazards causing death or serious harm. 

The agency's use of the general duty clause allowed the agency to levy heavier fines than if a business was cited under one of Whitmer's executive order.

The COVID-19-specific citations have included 35 businesses and totaled $33,400 in fines in August, $51,400 in September and $30,900 in October.

Since the Supreme Court decision Friday, some officials have questioned the validity of the citations, arguing that violations of the general duty clause were based on non-compliance with Whitmer's executive orders on mask usage, social distancing or employee training. 

In fact, Whitmer's first workplace safety order, executive order 114, cited MIOSHA's general duty clause and noted anyone who failed to comply with her executive order "has failed" to comply with the general duty clause.

“Everything has hinged on the executive orders until this point,” said Brian Calley, the state's former lieutenant governor and president for the Small Business Association of Michigan.

“I do think that in most cases, the MIOSHA fines that have been levied are highly questionable,” he said.

But Egan on Sunday denied the MIOSHA citations had anything to do with Whitmer's executive orders. 

"The safety requirements MIOSHA has been enforcing relating to COVID-19, and the citations issued to date, are based on MIOSHA’s statutorily supported general duty clause, which requires all employers to provide a workplace free from recognized hazards," Egan said. 

"The Supreme Court’s decision does not invalidate any citation."

Calley questioned whether MIOSHA, absent executive order support, could have issued the citations under the general duty clause without going through the normal rule-making process to include COVID-19 precautions as part of the definition of a safe workplace

"If a department were to change a standard of what is required to have a workplace that is free from hazards that are likely to cause death or serious physical harm, there would have been a process for that, a rulemaking process," Calley said.

"And they’ve never done that."

eleblanc@detroitnews.com