Michigan businesses spent months adapting to executive orders regulating their operations during the pandemic. Now they’re trying to figure out what rules still apply.
That answer remained unclear late Monday afternoon, after a new round of regulations were announced by the Michigan Department of Health and Human Services (MDHSS) following a court ruling last week appeared to nullify many of the orders set by Gov. Gretchen Whitmer.
“There’s a lot of confusion out there,” said Andy Johnston, executive vice president of government and corporate affairs for the Grand Rapids Area Chamber of Commerce.
Johnston and his colleagues were busy on Monday, like many other business advocacy groups in the state, fielding calls and questions from members about issues like mandatory masks, occupancy limits and liability issues.
An opinion by the MIchigan Supreme Court on Friday found that a 1945 law that Gov. Gretchen Whitmer was relying on to issue coronavirus executive orders without consent from the Legislature was unconstitutional. Dozens of her executive orders have regulated businesses over the last six months, from the restaurant shut-down to mandating masks and capacity limits.
Then late Monday afternoon, the state health department issued a new round of requirements: Masks remained mandatory in most settings, but other rules — like those setting restaurant occupancy and preventing bars from reopening — changed.
It was not immediately clear if the new rules, expiring October 30, are enforceable, whether they would be legally challenged, and if additional guidelines would come.
Before the MDHSS orders, Johnston of the Grand Rapids chamber, said he had expected Whitmer to work with the Legislature and businesses on the next round of COVID-related guidelines following last week’s Supreme Court decision. Businesses want input, he said, so that both public health and the economy can be protected.
“Businesses need clarity, consistency and transparency on decision-making,” he said. “We hope they come to do that soon.”
The court’s ruling came as the state’s coronavirus numbers tick up and some areas, like college campuses and the Upper Peninsula, experience troubling outbreaks. On Monday, the seven-day rolling coronavirus average in Michigan was 884 new cases, the highest since April 29. About 800 people were listed as hospitalized, up 300 since September 25.
The rise in hospitalizations coincides with a slowing economic rebound across the U.S. after a freefall in business output in the second quarter of the year as government stay-at-home orders escalated. In Michigan, the state’s gross domestic product (GDP) decline from April to June was among the worst in the nation, representing a loss of 37.6 percent on an annualized basis.
Over the next few months, further recovery “depends on the trajectory of the virus,” said Sandy Baruah, president and CEO of the Detroit Regional Chamber. The Detroit chamber has urged businesses to require mask wearing, one sign of its support for the state’s COVID initiatives that help keep businesses open.
Baruah said minimizing spread of the virus will help Michigan businesses hurt by the coronavirus recession to eventually rebound.
“If it stays under control, I think we’ll have a slow but steady economic recovery,” he said. “If the virus gets out of control, there’s very likely to be a second wave of shutdowns and health crises, especially as the weather grows colder.”
That puts particular attention on how quickly COVID-related restrictions can be resolved among the Governor’s office, her administration and health officials, and the Legislature, he added.
“There has never been a more important time for a governor and a legislature to work together to keep Michiganders safe,” Baruah said.
While awaiting state guidance following the Supreme Court ruling, some areas took their own steps on safety measures. Oakland County issued a county-wide mask mandate over the weekend. Ingham and Washtenaw counties issued four county-wide orders: mandating people continue to wear masks, limiting indoor and outdoor gatherings, keeping indoor restaurant and bar seating limited to 50 percent capacity and requiring employee health screenings.
But the local nature of those requirements may add to the confusion.
“A patchwork scheme isn’t helpful to businesses,” said Wendy Block, vice president of business advocacy for the Michigan Chamber of Commerce. Business owners “just want to know what the rules of the game are.”
The confusion extends to customers. Johnston said he spoke to a restaurant owner whose staff was challenged over the establishment’s mask rule.
The Michigan Retailers Association saw numerous incidents in early summer over mask-related confrontations, and had to hold deescalation training for its members. On July 10, Gov. Whitmer made masks mandatory in retail settings.
Now, said spokesperson Meegan Holland, the MRA hopes customers will understand that stores will continue to follow that guideline, even without clarity from a state or local rule.
“(We’re) working hard to educate shoppers that when they enter a store, it is the store owner’s space, so it’s their rules,” Holland said “You don’t have the right to march into a store and expect to do what you like. It’s no different than visiting a friend’s house and happily complying when you’re asked to take off your shoes.
“If the store requires a mask, then please be respectful and follow the store owner's wishes.”
Besides masks, business owners have additional questions. Among them are their obligations to employees and whether their own COVID liability concerns will change.
With answers still developing, most business owners are hearing simple advice: “Continue with what you’re doing,” said Block of the Michigan chamber. Licensing and worker safety regulations still apply, and businesses could still be fined under those authorities.
Michigan State Police, meanwhile, noted the MDHHS rules announced late Monday also come with enforcement: Violations are “a misdemeanor punishable by imprisonment for not more than six months and a fine of not more than $200 fine. A civil fine of up to $1,000 also is possible, according to a news release.
While the state will almost certainly face challenges to the MDHHS rules and experts provide clarity on whether executive orders remain in place, businesses can’t go wrong with continuing rules already in place, industry advocates say. Best practices, Johnston and Block said, including following the guidelines from the U.S. Centers for Disease Control and Prevention.
The new MDHHS rules offer a slight reprieve for some businesses. Bars that make more than 30 percent of their revenue from alcohol were closed for months in Michigan under Whitmer’s orders. But the new MDHSS order says they can reopen as long as there’s no dancing and patrons remain seated six feet apart.
That won’t help some of the smaller bars, said Scott Ellis, executive director of the Michigan Licensed Beverage Association. It’s possible, he said, that some may take this window of confusion to reopen.
“Some are so desperate, they’re going to,” Ellis said. “They don’t have a choice.”