Now that Michigan’s executive orders have been thrown out – which the violations were based off – Shoudy is even more sure the citations won’t hold up.The city of Port Huron is one of 35 organizations and businesses fined by the Michigan Occupational Safety and Health Administration for COVID-19 workplace safety violations, totaling $115,700.
MIOSHA claims the Supreme Court’s invalidation of the orders doesn’t invalidate the citations, however. The Michigan Supreme Court ruled last week that the 1945 Emergency Powers of Governor Act is unconstitutional, which is the law Gov. Gretchen Whitmer’s most recent executive orders were issued under.
“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,” said Sean Egan, Michigan’s director of COVID-19 Workplace Safety, in a statement to MLive. “The Supreme Court’s decision does not invalidate any citation.”
Citations so far have been for violations such as not requiring employees to wear masks, not having proper cleaning procedures, not training employees in COVID-19 precautions and not doing daily health screenings of employees.
Like Shoudy, Small Business Association of Michigan President Brian Calley doesn’t think the citations will hold up.
“I’m almost certain that it won’t,” Calley said. “Even though their fines say they’re levied under the ‘general duties provision,’ the definition of operating safely came directly and explicitly from the executive orders.”
On top of that, Shoudy said the state can’t use that provision if there was no exposure to a harm. Employers must make their workplace “free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee,” per the provision in state law.
“The city (or Port Huron) hasn’t had a single office employee test positive for COVID,” Shoudy said. “Not one. There’s no outbreak that happened at the city. How can you have a general duty clause violation when there’s no outbreak of COVID at your office?”
The city of Port Huron has had numerous precautions in place since the pandemic started and will keep them going – even without executive orders to mandate them, Shoudy said.
MLive reached out to other businesses fined by MIOSHA for COVID-19 workplace violations, but many couldn’t be reached for comment or declined to comment.
One person associated with a cited business said they don’t believe the fines can be enforced because of the Supreme Court ruling.
Another business, Hill’s Roofing LLC, already started fighting the state on the citations before the Supreme Court ruling. The business created a GoFundMe to fight the “unconstitutional violations and financial losses due to this (sh--) show.”
The second part of the debate is: Can MIOSHA keep handing out COVID-19 safety violations without the executive orders in place?
The state says it can, per Egan’s statement.
“As it relates to COVID-19, employers must continue to comply with current workplace safety protections published by the CDC, OSHA, and other applicable public health guidance,” Egan said in the statement. “MIOSHA will continue to operate within its statutory authority to protect Michigan’s workers and keep workplaces safe.”
Calley disagrees. But it wouldn’t take much to set up rules to allow citations to happen, he said.
“They could promulgate rules and say, 'Hey, for COVID-19, here’s what that means,” Calley said.
MIOSHA can put these rules in place themselves, Calley and Shoudy said, but the rules would have to go through a review process and give the public an opportunity to comment. The state could then, for example, decide it wants to cite businesses that don’t follow the federal OSHA COVID-19 guidelines, which includes details like hand washing and mask wearing, but nothing about capacity limits.
If MIOSHA would have created its own rules and definitions in the first place – instead of relying on the executive orders – the original citations wouldn’t be in legal jeopardy today, Calley said.
“They never went through the process,” Shoudy said. “(Now) they’re trying to hold all these employers liable for not following rules that were illegally issued and never adopted by MIOSHA.”
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