Whitmer's 'Enhanced' Executive Order Penalties Appear Outside The Law And Constitution

The state of Michigan may be violating a court ruling by issuing much larger fines than allowed for businesses that violate one of Gov. Gretchen Whitmer’s COVID-19 executive orders.

On Aug. 21, the state of Michigan announced it had cited six businesses for violations for “not taking the appropriate steps to protect employees and their communities from the spread of COVID-19.” A state agency issued a press release headlined, "State Issues COVID-19 Citations for Workplace Safety Violations, Urges Businesses to Protect Employees"

The violations were related to social distancing and face mask use, issues covered in Whitmer’s executive orders.

In June, the Court of Claims ruled that in seeking to increase penalties specified in her own executive orders, the governor's team were acting outside the law.

On behalf of builders and landscapers, the Mackinac Center Legal Foundation filed a lawsuit in May arguing that it violated the state constitution to increase the penalties beyond those specified in the same law authorizing emergency executive orders.

In Executive Order 97, Whitmer implemented “strict workplace safety measures” that increased penalties for executive order violations by businesses. The previous penalty was a 9-day jail sentence and $500 fine.

By transferring enforcement to the Michigan Occupational Safety and Health Administration (MIOSHA), the penalties (a three-year felony and a fine as much as $70,000) were increased to those authorized by a different law. The court ruled that the fines and penalties had to be limited to those specified in the law authorizing executive orders, which are misdemeanors subject to a $500 fine.

The Whitmer administration is trying to get around that court ruling by citing what it calls “general duty” clause under MIOSHA law.

The state said in a press release, “The MIOSHA ‘general duty’ clause requires an employer to provide a workplace that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to the employee. A general duty clause citation carries a fine of up to $7,000.”

For example, the state cited a Speedway gas station in Waterford where employees were inadequately wearing face masks under the nose, and that was not providing face coverings to employees free of charge, among other violations. MIOSHA fined the gas station $6,300.

Under this interpretation, the penalties that would apply in these cases are those specified for actions that “cause or likely to cause, death or serious physical harm to the employee.”