Michigan Governor Whitmer Declares State of Expanded Emergency and Disaster, Replacing Executive Order 2020-4

On April 1, 2020 Michigan Governor Gretchen Whitmer signed Executive Order 2020-33 (“Order 2020-33”), declaring a state of emergency expansion and additionally declaring a state of disaster to address the fast-progressing COVID-19 pandemic.

Purpose and Effect On Previously Issued Orders

Order 2020-33 was issued by Governor Whitmer primarily to rescind and replace Executive Order 2020-4 (“Order 2020-4”), which she issued on March 10. Order 2020-4 only declared Michigan to be under a state of emergency.

Under Michigan law, the Governor is permitted by the Emergency Powers of Governor Act to proclaim a state of emergency unilaterally and promulgate reasonable orders, rules, and regulations considered necessary to protect life and property or to bring the emergency situation under control. (1945 PA 302, MCL 10.31) Legislative approval is not required to exercise this power during times of great public crisis or similar situations that imperil public safety. (MCL 10.31(1))

However, under the Michigan Emergency Management Act (1976 PA 390, as amended, MCL 30.401-.421), a state of emergency may only last for 28 days unless an extension is approved by resolution of both houses of the Legislature. (MCL 30.403(4)) By declaring the Michigan COVID-19 situation to also constitute a state of disaster, Order 2020-33 allows the Governor to exercise her emergency powers without legislative approval for an additional 28 days. (MCL 30.403(3))

The declaration of a disaster also provides additional time for the Michigan executive and legislative branches to develop a coordinated response plan and possible legislation. House Speaker Lee Chatfield (R-Levering) and Senate Majority Leader Mike Shirkey (R-Clarklake) agreed to convene the Legislature on April 7 to adopt a concurrent resolution that would extend those declarations. However, uncertainty exists as to the length of continuation that might be approved by the Legislature (public statements indicate that the Republican leadership may not be willing to go out as far as 70 days). By coupling the disaster declaration with an expanded state of emergency declaration, the Governor appears to be signaling that she considers the situation to remain emergent, and that if necessary she will act without legislative cooperation to protect lives under the Emergency Powers of Governor Act.

Finally, while Order 2020-33 replaces and rescinds the previously declared state of emergency, this replacement will have no effect on other Executive Orders issued by the Governor related to COVID-19. The ancillary Executive Orders issued to date, including Executive Order 2020-21 (“Stay Home, Stay Safe”) which initiated Michigan’s shelter-in-place requirement, have their own expirations as required by 1945 PA 302. They will therefore expire as described in each respective Order.

Additional Order Provisions

In addition to rescinding and replacing Executive Order 2020-4 and declaring both an expanded emergency and disaster, Executive Order 2020-33 lays out two additional provisions related to Michigan’s COVID-19 response:

The first orders the Department of State Police to coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist.
The second provision describes when the state of emergency and disaster may terminate. This will occur either when emergency and disaster conditions no longer exist and appropriate programs have been implemented to recover from any effects of the statewide emergency and disaster, or as required by law.

Key Difference for Healthcare Response Created by Declaration of Disaster

While the immediate effects of Executive Order 2020-33 change little outside of government for most individuals and entities, the declaration of a state of disaster does create a significant change for healthcare responders.

Specifically, unlike a state of emergency, the declaration of a state of disaster under the Michigan Emergency Management Act makes it possible to mobilize a much broader array of healthcare providers who are granted immunity for malpractice. When a state of disaster is declared, the Emergency Management Act provides that the following changes occur:

Individuals and hospital facilities licensed to practice medicine, osteopathic medicine, or surgery by a state other than Michigan, the federal government, or a branch of the armed forces may be considered authorized disaster relief workers and facilities when rendering service at the express or implied request of a state official or agency or county or local coordinator or executive body. (See MCL 30.311(4))
A broad range of other medical professionals including nurses, dentists, veterinarians, paramedics, and medical residents may be considered authorized disaster relief workers for more basic procedures. (See MCL 30.311(4-6))
Authorized disaster relief workers and facilities are not liable for an injury sustained by a person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained. This immunity does not apply to willful acts or gross negligence. (See MCL 30.311(4))
Real property owners who volunteer the use of their premises are similarly granted immunity from civil liability for negligently causing the death or injury of any person on the premises for the purpose of disaster response, provided the owner makes known any known hidden dangers or safety hazards. (See MCL 30.311(7-8))

For more information about recommended steps, please contact your Foley relationship partner. For additional web-based resources available to assist you in monitoring the spread of COVID-19 on a global basis, you may wish to visit the CDC and the World Health Organization.

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