Hanba & Lazar | H&L Quarterly – October 2020
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H&L Quarterly – October 2020

H&L Quarterly – October 2020

Michigan Supreme Court Order of October 2, 2020 and its Possible Effects on COVID-19 Workers’ Compensation Claims

By Michael Smith 

On October 2, 2020, the Michigan Supreme Court issued an order impacting the Executive Orders that Governor Whitmer has issued since the beginning of the Covid-19 pandemic.  The first part of that decision by the Court held that the Governor did not possess authority under the Emergency Management Act of 1976 (EMA) to declare a “state of emergency” or “state of disaster” based on the Covid-19 pandemic after April 30, 2020.
 
The second part of that decision held the Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (EPGA).  They held that act was an unlawful delegation of legislative power to the executive branch in violation of the Michigan constitution. 
 
How does the Court order affect worker’s compensation cases?
 
First, the Court order means the Governor’s Executive Order 2020-128 “Clarifying WDCA Eligibility for Workplace Exposure to Covid-19” was not valid.  Does that mean that after April 30, 2020 any employee, whether previously considered a “Covid-19 response employee” or “first response employee”, must prove they contracted Covid-19 at work rather than having a presumption that it was work-related?  We of course would answer yes.
 
However, it must be remembered that prior to the Executive Order 2020-128 of June 30, 2020, there was the proposed “Emergency Rules of the Department of Labor and Economic Opportunity, Worker’s Compensation Agency”.  Those emergency rules were not issued by the Governor under the EMA or EPGA but rather issued by the Director of Labor and Economic Opportunity (LEO).  The Director issued these rules under the guise of being able to do so under the WDCA Sections 205 and 2013 as well as the administrative procedures act of 1969.  Those “rules” were issued effective March 30, 2020 and were to remain in effect for six months.
 
Does the recent Supreme Court order of October 2, 2020 therefore mean that the Director’s emergency rules of March 30, 2020 would be in effect until September 30, 2020?  The Governor’s Executive Order 2020-128 contained the following language:
 
3) The Director of the Department of LEO is authorized to issue orders and directives necessary to implement this executive order.
 
4) This order replaces the emergency rules that LEO filed with the Secretary of State on March 30, 2020; those rules are hereby suspended.
 
5) If any portion of this order is finally adjudicated invalid, section 4 is void.
 
It could be interpreted that because EO 2020-128 was invalid, that order does not replace the prior emergency rules of LEO set forth in that March 30, 2020 emergency rules document.  This would be pursuant to sections 4 and 5 of EO 2020-128.  Under such an argument, the emergency rules of March 30, 2020 would, therefore, be in effect until September 30, 2020.
 
We will have to see how things shake out.  We have not received any direction from the Director of the Workers’ Compensation Agency. We do suggest that if the claimed Covid-19 date of injury is after September 30, 2020, then the employee, no matter what their job was, must prove that he or she contracted Covid-19 at work. They would have no benefit of the causation presumption on this issue.  Covid-19 cases with dates of injury between April 30, 2020 and September 30, 2020 could be disputed as “no proof injury work related” with no presumption for the employee per the Michigan Supreme Court holding of October 2, 2020.

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