Many MITA members have asked about the potential enforcement of Governor Whitmer’s Executive Orders by the MIOSHA Construction Safety Division, and a recent ruling by the Court of Claims should help to quell those fears.
The Court of Claims on Monday ruled that the potential penalties lobbed against businesses who refuse to create new coronavirus-safe workspaces – prescribed by Governor Gretchen Whitmer’s Executive Order 2020-97 – are unenforceable.
Judge Christopher Murray ruled that the penalties prescribed by Ms. Whitmer to ensure businesses were keeping employees and patrons safe from COVID-19, as written, were impermissibly attached to penalties outlined in the Michigan Occupational Safety and Health Act. Some of those penalties carried hefty fines and felony charges, which Mr. Murray said overreaches Ms. Whitmer’s executive authority.
Therefore, Mr. Murray granted immediate declaratory relief to Associated Builders and Contractors in count one of its lawsuit filed against Ms. Whitmer in late May. The ruling states that any violation of the order attached to MIOSHA and its associated penalties are unenforceable, and thus, null and void.
The rest of EO 2020-97, however, remains intact, Mr. Murray added.
At issue in Associated Builders and Contractors et al v. Whitmer et al (COC Docket No. 20-000092) are Executive Order 2020-69 and Executive Order 2020-97, which the plaintiffs alleged imposed extensive requirements for workplace safety to help minimize the transmission of COVID-19. That includes, as plaintiffs noted, the modification of workplace environments and the implementation of new protocols.
The lawsuit also took aim at Ms. Whitmer’s earlier EO 2020-06, which states that businesses must guarantee that the resumption of their activities will not contribute to the spread of the new virus.
In EO 2020-97, Ms. Whitmer wrote that any violation of the order would constitute as per-se violations of MIOSHA. The statute governs workplace safety, and violations of the act carry fees and fines up to $70,000 in some cases or felony convictions punishable by up the three years imprisonment.
Mr. Murray wrote that even though Ms. Whitmer is afforded broad powers through the Emergency Powers of the Governor Act and the Emergency Management Act, both acts only permit misdemeanor penalties for violating executive orders – which do not include the felony-equipped penalties laid out in MIOSHA.
Mr. Murray went on to say that if there is indeed overlap between a violation of the executive order and MIOSHA, “then any violation of the order must be punishable by a misdemeanor, while any violation under MIOSHA will be subject to the penalties available under that separate statutory scheme.”
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