On Tuesday, October 20, Governor Whitmer signed Senate Bills 886 and 991, expanding unemployment benefits to Michiganders. The bills will extend unemployment benefits for Michiganders who have lost work as a result of the COVID-19 pandemic from 20 to 26 weeks until the end of the year. Senate Bills 886 and 991 were both sponsored by Senator Ken Horn (R-Frankenmuth)
“No Michigander should have to worry about how to put food on the table or pay their bills, especially during a global pandemic,” said Governor Whitmer. “These bipartisan bills are an important step in providing immediate relief for working families, but given the recent rise in COVID-19 cases and hospitalizations in Michigan, I urge the legislature to take further action to make this permanent. 40 states, including all of our neighbors, automatically provide at least 26 weeks of unemployment relief. Michiganders deserve better than a short-term extension that expires at the end of the year. It’s time to work together on a long-term solution for working families.”
A recent article featured in the Michigan Oil & Gas News covered the passing of two crucial Covid-19 related unemployment and employer liability protections. Subscribe to the Michigan Oil & Gas News Today! for more great content.
The Michigan Legislature has passed two bills codifying numerous COVID-related protections in the wake of a Michigan Supreme Court ruling that vacated Gov. Gretchen Whitmer’s executive orders related to the pandemic.
The Michigan Supreme Court on Oct. 12 had made clear the decision was effective when the order was entered on Oct. 2.
Michigan Senate Bill 886
Introduced by Sen. Ken Horn (R-Frankenmuth) restores some language from the governor’s executive orders that provides flexibility in unemployment claims during the pandemic and protects employers from a spike in their unemployment taxes.
The bill ensures that Michigan maintains access to federal funding for extended unemployment benefits by temporarily maintaining a 26-week state benefit duration and allows employers a full year to protest unemployment claims made between March 15, 2020 and Jan. 1, 2021. The bill restores the requirement that a claimant be actively engaged in a work search as a condition of receiving benefits.
House Bills 6030, 6031 & 6101
Introduced by Rep. Tom Albert (R-Lowell), Rep. Tommy Brann (R-Wyoming) and Rep. Wendell Byrd (D-Detroit), respectively, provide protections for employers from all civil tort claims and actions under the Michigan Occupational Safety and Health Act (MIOSHA), as long as the employer follows all relevant statutes, rules, regulations and orders that were in legal effect at the time.
On Friday, October 16, Governor Whitmer signed emergency rules allowing the Michigan Employment Relations Commission (MERC) and the Michigan Public Service Commission (PSC) to conduct remote hearings.
According to the Governor's press release,
"Despite the Michigan Supreme Court’s recent ruling, MOAHR has administrative rule authority to continue to conduct hearings by telephone or video conference in order to reduce the risk to all hearing participants of both the transmission and a resurgence of COVID-19. However, the current ruleset does not apply to administrative hearings held on behalf of the Michigan Employment Relations Commission (MERC) and the Michigan Public Service Commission (PSC)".
This narrow emergency rule amendment will therefore revise Rule 121 of the MAHS administrative hearing rules, Rule 792.10121, to allow MOAHR to continue to remotely conduct hearings on behalf of the MERC and the PSC.
On Monday, October 12, 2020 the Michigan Supreme Court denied the Governor's request to extend her pandemic executive orders 28 days. According to MIRS News, the court reiterated its previous holding that the Emergency Powers of the Governor Act (EPGA) is "incompatible with the constitution" and executive orders (EOs) issued under that act "are of no continuing legal effect."
On Friday, October 9, the Michigan Department of Health and Human Services (MDHHS) issued a second emergency epidemic order, replacing the one previously issued on Monday, October 5. The new order contains more guidance on capacity limits, masks in childcare settings, worker protections, and contact tracing and addresses mask usage, capacity limits, and gathering restrictions. This new order essentially re-instates the restrictions that were previously in place under Gov. Whitmer's executive orders before the MI Supreme Court ruled she did not have the authority to issue executive orders addressing Covid-19 after April 30, 2020.
Michigan Proposal 1, the Use of State and Local Park Funds Amendment, is on the November ballot this year as a legislatively referred constitutional amendment, so what exactly would the measure do?
Proposal 1 would make changes to how revenue in the state's park-related funds (Michigan Natural Resources Trust Fund (MNRTF) and Michigan State Parks Endowment Fund (MSPEF)) can be spent. Funding for the MNRTF and SPEF is provided by revenue derived from royalties on the sale and lease of state-owned oil, gas and mineral rights. Through these funds, Michigan’s oil and gas industry has contributed over $1.1 billion to Michigan’s state & local parks, waterways, trails and nature preserves throughout all 83 counties.
The Michigan Natural Resources Trust Fund (MNRTF) provides grants to local governments for acquiring land for recreational use, environmental conservation, and scenic importance and for developing recreational facilities. The ballot measure would make projects to renovate and redevelop existing recreational facilities eligible for grants. The ballot measure would require that a minimum of 25 percent of grant funding be spent on developing, renovating, and redeveloping recreational facilities each year. As of 2018, a maximum of 25 percent of grant funding could be spent on developing facilities. The ballot measure would continue to provide that a minimum of 25 percent of grant funding be spent on acquiring land each year.
The Michigan State Parks Endowment Fund (MSPEF) provides funding for the state park system. As of 2018, the fund could be spent on the acquisition of land and capital improvements. The ballot measure would allow the fund to be spent on park operations and maintenance. The ballot measure would require that at least 20 percent of the annual expenditures be spent on capital improvements.
Proposal 1 would also remove the MNRTF's cap of $500 million in principal and allow the trust fund to begin receiving revenue again after the MSPEF reaches $800 million in principal. The MNRTF reached the cap in 2011. Removal of the cap would allow the MNRTF to grow faster and increase funding for grants.
This would not be the first time the cap was adjusted, in 1984, the MNRTF had a cap of $200 million in principal from royalties. Voters approved ballot measures to increase the cap to $400 million in 1994 and to $500 million in 2002. In 2011, the MNRTF reached the cap of $500 million
The Michigan Oil and Gas Association supports the ballot measure. At this time, the measure has broad support and no organized opposition.
Michigan Department of Health and Human Services issues an emergency public health order requiring masks and limiting gatherings
On Monday, October 5, the Michigan Department of Health and Human Services (MDHHS) issued a public health emergency order re-establishing mask requirements, limitations on gatherings, and restaurant and bar restrictions through October 30.
The new order applies statewide, with some exceptions for facilities and operations in MI Safe Start Region 6, the Traverse City Region, which includes Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle and Emmet counties.
The state health department expects to issue further orders regarding schools, nursing homes and congregate care in the coming days, according to MDHHS Director, Robert Gordon. He also added that the the Department of Labor and Economic Opportunity may issue those in the coming days alongside workplace safety rules.
- Masks will be required in schools in every MI Safe Start region except the Traverse City region.
- People participating in organized sports must wear masks unless they are swimming or maintaining six feet of distance.
- At indoor gatherings of up to 10 people at a non-residential venue, people must wear face coverings.
Attendance limitations at gatherings
- Up to 500 people at an indoor non-residential venue, limited to 20% of the venue’s total capacity in most of the state and 25% of the venue’s total capacity in the Traverse City region, or 20 people per 1,000 square feet in most of the state and 25 people per 1,000 square feet in the Traverse City region.
- Up to 1,000 people at indoor non-residential venues, limited to 30% of normal capacity or 30 people per 1,000 square feet.
Those who violate the order are subject to a misdemeanor punishable by imprisonment of up to six months, a fine of up to $200, or both. Violators are also subject to a civil fine of up to $1,000.
Where does MDHHS derive its authority for this new order?
Under Act 368 of 1978, (MCL 333.2235), “If the (MDHHS) director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Emergency procedures shall not be limited to this code.”
This order is effective immediately and remains in effect through Friday, Oct. 30.
This November 3rd the people of Michigan will choose two Justices for the Michigan Supreme Court and who they chose will determine whether we have a rule of law or activist court. The 4-3 decision last week by the Michigan Supreme court on the Governor’s emergency authority could not have highlighted better the stark contrast between how separation of powers is viewed by conservative and liberal judges. The conservative majority ruled against the Governor striking down the law, the liberal members of the court dissented and made clear they did not see a violation of separation of powers. The fundamental question before the court was whether the Governors authority is limited by the constitution. In November, the voters of Michigan will decide whether they want a court that limits the power of the Governor and State Government or not.
Michigan Supreme court Justice candidates are nominated by political parties at each of their respective conventions. This election the Democrats nominated current Michigan Supreme Court Chief Justice Bridget Mary McCormack to seek re-election, they also nominated Elizabeth Welch to run for the open seat. The Republican Nominees for the Michigan Supreme Court are Mary Kelly and Brock Swartzle. Justice Stephen Markman, a Republican nominated Justice, will retire at the end of this year due to the courts age limits.
Michigan Supreme Court rules Governor Whitmer did not have authority to declare the state of emergency beyond April 30, 2020
On Friday, October 2, 2020 the Michigan Supreme Court issued a 4-3 decision ruling the Emergency Powers of the Governor Act (EPGA) of 1945 unconstitutional and declaring that Governor Whitmer did not have authority to declare the state of emergency beyond April 30, 2020, the last date that the Legislature acted to authorize the declarations. The ruling concluded the 1945 Act violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely.
The ruling stated, "Under the EMA, the governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the governor possessed no authority to re-declare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority."
Additionally, the State Supreme Court agreed unanimously that the Governor lacked the authority to declare states of emergency or disaster under the 1976 Emergency Management Act (EMA) after the Legislature declined to extend it back in April. The Governor had used the Emergency Powers of Governor Act to extend the state’s emergency status and issue dozens of executive orders related to Covid-19. According to the court, those orders are no longer enforceable as of last Friday.
While the Governor’s office released a statement maintained that the Court’s order does not take effect for 21 days and, during that time, the Governor’s declaration of the state of emergency and all orders pertaining to it continue to have the force of law, the Attorney General’s office announced that it will no longer enforce the Governor’s Executive Orders through criminal prosecution.Read more