09 June 2020

MIOSHA Penalties and Enforcement Scheme in Governor’s Executive Orders Are Invalidated

On June 4, 2020, the Michigan Court of Claims declared that Executive Order 2020-97 was unlawful to the extent that it deemed any violation of its workplace safety standards a per se violation of MIOSHA.  Although Executive Order 2020-97 has since been replaced by Executive Order 2020-114, the new executive order contains the identical language that was held unlawful. As a result, the provisions of Executive Order 2020-114 that attempt to impose MIOSHA penalties and MIOSHA enforcement for any violation of the order’s safety requirements are also unenforceable.

The decision came in Associated Builders & Contractors, Inc, of Michigan and DJ’s Lawn Service, Inc v Whitmer.  The Michigan Court of Claims ruled that the Governor lacked the authority to circumvent the important rule-making procedures for MIOSHA standards.  More specifically, the Court struck down the portions of the Governor’s recent executive orders that attempted to invoke MIOSHA enforcement mechanisms, which could have resulted in significant MIOSHA penalties despite a business’s good faith efforts to follow COVID-19 safety and operational requirements.

The decision makes clear that liability may be imposed only for a willful violation of Executive Order 2020-114.  Any business or person charged with a violation of the order is entitled to the ordinary due process protections afforded to those accused of criminal conduct.

This is a significant decision for Michigan businesses.  And it is the first order by a Michigan court invalidating any portion of Governor Whitmer’s emergency executive orders.