STATE OF MICHIGAN

JOURNAL

OF THE

House of Representatives

100th Legislature

REGULAR SESSION OF 2020

House Chamber, Lansing, Wednesday, September 30, 2020.

1:30 p.m.

The House was called to order by the Clerk.

The roll was called by the Clerk of the House of Representatives, who announced that a quorum was not present.

Announcements by the Clerk of Printing and Enrolling

The Clerk announced the enrollment printing and presentation to the Governor on Tuesday, September 29, for her approval of the following bills:

Enrolled House Bill No. 4980 at 3:32 p.m.

Enrolled House Bill No. 4981 at 3:34 p.m.

Enrolled House Bill No. 4982 at 3:36 p.m.

Enrolled House Bill No. 4983 at 3:38 p.m.

Enrolled House Bill No. 4984 at 3:40 p.m.

Enrolled House Bill No. 4985 at 3:42 p.m.

Enrolled House Bill No. 5120 at 3:44 p.m.

The Clerk announced that the following bills had been reproduced and made available electronically on Tuesday, September 29:

House Bill Nos. 6264 6265 6266 6267 6268 6269 6270 6271 6272 6273 6274 6275 6276 6277 6278 6279 6280 6281 6282 628 3 6284 6285 6286 6287 6288 6289

Senate Bill Nos. 1149 1150

The Clerk announced that the following bills had been reproduced and made available electronically on Wednesday, September 30:

Senate Bill Nos. 1151 1152 1153 1154 1155 1156 1157 1158 1159

The Clerk announced that the following Senate bills had been received on Wednesday, September 30:

Senate Bill Nos. 20 21 293 758 761 813 827 970 983 986 1006 1021 1035 1054 1057 1058 1090 1091 1097

Messages from the Governor

The following message from the Governor was received September 29, 2020 and read:

EXECUTIVE ORDER

No. 2020-186

Declaration of state of emergency and state of disaster

related to the COVID-19 pandemic

Rescission of Executive Order 2020-177

Where Michigan was once among the states most heavily hit by COVID-19, our per-capita rate of new daily cases has plateaued at a level well below the national average. Despite gradually reopening our economy, Michigan’s seven-day case positivity rate has remained between 3.0% and 3.7% since early July. Over the same time period, case growth has also remained within a narrow band of 61 to 71 daily new cases per million population, by date of symptom onset. As Michigan students have returned to in-person learning, schools and colleges have become the leading source of outbreaks in our state, surpassing nursing homes for the first time. Moreover, the number of counties experiencing severe outbreaks (in excess of 100 cases per million per day) appears to be on the rise, raising the possibility that hospital systems could become overwhelmed if such flareups are not quickly extinguished.

There is much we do not know about this novel virus, but we know at least three things for certain: it is widespread, it is easily transmitted by airborne particles, and its effects can be fatal. That lethal combination, combined with ongoing uncertainty about how to defeat it, means that the health, economic, and social harms of the COVID-19 pandemic remain severe and affect every corner of this state. The COVID-19 pandemic therefore constitutes a statewide emergency and disaster.

On March 10, 2020, I issued Executive Order 2020-4, which declared a state of emergency in Michigan to address the COVID-19 pandemic. This disease, caused by a novel coronavirus not previously identified in humans, can easily spread from person to person and can result in serious illness or death. There is currently no approved vaccine.

Once detected, the virus quickly spread across Michigan. As of April 1, 2020, the state had 9,334 confirmed cases of COVID-19 and 337 deaths from the disease, with many thousands more infected but not yet tested. Exactly one month later, this number had ballooned to 42,356 confirmed cases and 3,866 deaths from the disease—a tenfold increase in deaths.

The virus’s rapid spread threatened to overwhelm the state’s health care system: hospitals in multiple counties were reportedly at or near capacity; medical personnel, supplies, and resources necessary to treat COVID-19 patients were in high demand but short supply; dormitories and a convention center were being converted to temporary field hospitals.

On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020‑4 and declared both a state of emergency and a state of disaster across the state of Michigan. Like Executive Order 2020-4, this declaration was based on multiple independent authorities: section 1 of article 5 of the Michigan Constitution of 1963; the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq.; and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq. On April 7, 2020, the Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.

On April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the Emergency Powers of the Governor Act, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v Whitmer. On August 21, 2020, the Court of Appeals ruled that my declaration of a state of emergency, my extensions of the state of emergency, and my issuance of related executive orders clearly fell within the scope of the governor’s authority under the Emergency Powers of the Governor Act.

Since I first declared an emergency in response to this pandemic, my administration has taken aggressive measures to fight the spread of COVID-19, prevent the rapid depletion of this state’s critical health care resources, and avoid needless deaths. The best way to slow the spread of the virus is for people to stay home and keep their distance from others. To that end, and in keeping with the recommendations of public health experts, I issued orders restricting access to places of public accommodation and school buildings, limiting gatherings and travel, and requiring workers who are not necessary to sustain or protect life to remain at home. I also issued orders enhancing the operational capacity and efficiency of health care facilities and operations, allowing health care professionals to practice to the full extent of their training regardless of licensure, and facilitating the delivery of goods, supplies, equipment, and personnel that are needed to combat this pandemic. And I took steps to build the public health infrastructure in this state that is necessary to contain the spread of infection.

These statewide measures were effective. For example, a report released by the Imperial College COVID‑19 Response Team showed that my actions significantly lowered the number of cases and deaths that would have occurred had the state done nothing. And while the virus remains aggressive and persistent—on September 28, Michigan reported a total of 122,735 confirmed cases and 6,729 deaths—the strain on our health care system has relented, even as our testing capacity has increased.

In the meantime, the economic toll continues to mount. Between March 15 and May 30, Michigan received 2.2 million initial unemployment claims—the fifth-highest nationally, amounting to more than a third of the Michigan workforce. During this crisis, Michigan has often processed more unemployment claims in a single day than in the most painful week of the Great Recession, and the state already saw its highest unemployment rate since the Great Depression (22.7% in April). The Michigan Department of Treasury projects that the pandemic will cost the state $1 billion in revenue this fiscal year. Even as Michigan experiences unemployment rates not seen in decades, federal unemployment assistance has dwindled from $600 per week to $300. Without further action by Congress, even this limited federal assistance will run out.

In addition to these challenges, many Michigan students have returned to in-person instruction. Meanwhile, the state has seen schools and colleges become the leading source of outbreaks, even ahead of nursing homes. In addition to the risk of fatalities among our younger age groups, we are still learning about the long-term health consequences of this, including impacts on the heart, lungs, kidneys, and brain, which could impact generations for years to come.

The health, economic, and social harms of the COVID-19 pandemic thus remain widespread and severe, and they continue to constitute a statewide emergency and disaster. Though local health departments have some limited capacity to respond to cases as they arise within their jurisdictions, state emergency operations are necessary to bring this pandemic under control in Michigan and to build and maintain infrastructure to stop the spread of COVID-19, trace infections, and to quickly direct additional resources to hot-spots as they emerge. State assistance to bolster health care capacity and flexibility also has been, and will continue to be, critical to saving lives, protecting public health and safety, and averting catastrophe. Moreover, state disaster and emergency recovery efforts remain necessary not only to support Michiganders in need due to the economic effects of this pandemic, but also to ensure that the prospect of lost income does not impel workers who may be infected to report to work.

Statewide coordination of these efforts is crucial to creating a stable path to recovery. Until that recovery is underway, the economic and fiscal harms from this pandemic have been contained, and the threats posed by COVID-19 to life and the public health, safety, and welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. The COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.

2. This order constitutes a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. Subject to the ongoing litigation, and the possibility that current rulings may be overturned or otherwise altered on appeal, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act of 1976 when emergency and disaster conditions exist yet the legislature has not granted an extension request, this order constitutes a state of emergency and state of disaster declaration under that act.

3. This order is effective immediately and continues through October 27, 2020 at 11:59 pm. I will evaluate the continuing need for this order.

4. Executive Order 2020-177 is rescinded. All previous orders that rested on that order now rest on this order.

Given under my hand and the Great Seal of the State of Michigan.

Date: September 29, 2020

Time: 6:15 pm

[SEAL] GRETCHEN WHITMER

GOVERNOR

By the Governor:

JOCELYN BENSON

SECRETARY OF STATE

The message was referred to the clerk.

The following message from the Governor was received September 29, 2020 and read:

EXECUTIVE ORDER

No. 2020-187

Encouraging the use of electronic signatures and remote notarization,

witnessing, and visitation during the COVID-19 pandemic

Rescission of Executive Order 2020-173

To reduce in-person interactions that may lead to the spread of COVID-19, this order continues until October 31, 2020 the suspension of certain requirements related to notarizations, witnessing of signatures, and in-person visitation previously permitted by Executive Order 2020-158.

The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. Older adults and those with chronic health conditions are at particular risk, and there is an increased risk of rapid spread of COVID-19 among persons in close proximity to one another. There is currently no approved vaccine.

On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended (EMA), MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended (EPGA), MCL 10.31 et seq.

Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPGA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On August 21, 2020, the Court of Appeals ruled that the Governor’s declaration of a state of emergency, her extensions of the state of emergency,and her issuance of related EOs clearly fell within the scope of the Governor’s authority under the EPGA.

On September 29, 2020, I issued Executive Order 2020-186, again finding that the COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan. That order constituted a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. And, to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature had declined to grant an extension request, that order also constituted a state of emergency and state of disaster declaration under that act.

The Emergency Powers of the Governor Act provides a sufficient legal basis for issuing this executive order. In relevant part, it provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).

Nevertheless, subject to the ongoing litigation and the possibility that current rulings may be overturned or otherwise altered on appeal, I also invoke the Emergency Management Act as a basis for executive action to combat the spread of COVID-19 and mitigate the effects of this emergency on the people of Michigan, with the intent to preserve the rights and protections provided by the EMA. The EMA vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)–(2). This executive order falls within the scope of those powers and duties, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature has not granted an extension request, they too provide a sufficient legal basis for this order.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. Strict compliance with rules and procedures under the Uniform Electronic Transactions Act (“UETA”), 2000 PA 305, as amended, MCL 450.831 et seq., and the Uniform Real Property Electronic Recording Act (“URPERA”), 2010 PA 123, as amended, MCL 565.841 et seq., is temporarily suspended to the extent necessary to permit the use of an electronic signature for a transaction whenever a signature is required under Michigan law, unless the law specifically mandates a physical signature. As provided in section 7 of the UETA, MCL 450.837, a signature will not be denied legal effect or enforceability solely because it is in electronic form and if a law requires a signature, an electronic signature satisfies the law.

2. Strict compliance with rules and procedures under section 18 of the UETA, MCL 450.848, is temporarily suspended so as to permit each state department to send and accept electronic records and electronic signatures to and from other persons without a determination from or approval by the Department of Technology, Management and Budget.

3. Strict compliance the Michigan Law on Notarial Acts, 2003 PA 238, as amended, MCL 55.261 et seq., is temporarily suspended, to the extent it requires a notary to be in the physical presence of an individual seeking the notary’s services or of any required witnesses.

4. To minimize in-person interaction and facilitate remote work during the declared states of emergency and disaster:

(a) Governmental agencies and officials of this state are encouraged to use or permit the use of electronic records and electronic signatures for transaction of business, processing of applications, and recognition of the validity of legal instruments, and, when a notarized signature is mandated by law, to use a remote electronic notary pursuant to the Michigan Law on Notarial Acts, MCL 55.261 et seq.

(b) Persons and entities engaged in transactions are encouraged to use electronic records and electronic signatures and, when a notarized signature is mandated by law, to use a remote electronic notary pursuant to the Michigan Law on Notarial Acts, MCL 55.261 et seq.

5. In addition to other means available by law, any notarial act that is required under Michigan law may be performed by a notary who currently holds a valid notarial commission in this state (“notary”) utilizing two-way real-time audiovisual technology, provided that all of the following conditions are met:

(a) The two-way real-time audiovisual technology must allow direct interaction between the individual seeking the notary’s services, any witnesses, and the notary, wherein each can communicate simultaneously by sight and sound through an electronic device or process at the time of the notarization.

(b) The two-way real-time audiovisual technology must be capable of creating an audio and visual recording of the complete notarial act and such recording must be made and retained as a notarial record in accordance with sections 26b(7) to 26b(9) of the Michigan Law on Notarial Acts, MCL 55.286b(7) to 55.286b(9).

(c) The individual seeking the notary’s services and any required witnesses, if not personally known to the notary, must present satisfactory evidence of identity (e.g., a valid state-issued photo identification) to the notary during the video conference, not merely transmit it prior to or after the transaction, to satisfy the requirements of the Michigan Law on Notarial Acts, MCL 55.261 et seq., and any other applicable law.

(d) The individual seeking the notary’s services must affirmatively represent either that the individual is physically situated in this state, or that the individual is physically located outside the geographic boundaries of this state and that either:

(1) The document is intended for filing with or relates to a matter before a court, governmental entity, public official, or other entity subject to the jurisdiction of this state; or

(2) The document involves property located in the territorial jurisdiction of this state or a transaction substantially connected to this state. If an individual is physically located outside of the geographic boundaries of this state, the notary must have no actual knowledge that the individual’s act of making the statement or signing the document is prohibited by the laws of the jurisdiction in which the individual is physically located.

(e) The individual seeking the notary’s services, any required witnesses, and the notary must be able to affix their signatures to the document in a manner that renders any subsequent change or modification of the remote online notarial act to be tamper evident.

(f) The individual seeking the notary’s services or the individual’s designee must transmit by fax, mail, or electronic means a legible copy of the entire signed document directly to the notary on the same date it was signed. This requirement shall apply regardless of the manner in which the document is signed.

(g) Once the notary has received a legible copy of the document with all necessary signatures, the notary may notarize the document and transmit the notarized document back to the individual seeking the notary’s services.

(h) The official date and time of the notarization shall be the date and time when the notary witnesses the signature via two-way real-time audiovisual technology as required under this section.

6. Any requirement under Michigan law that an in-person witness attest to or acknowledge an instrument, document, or deed may be satisfied by the use of two-way real-time audiovisual technology, provided that all of the following conditions are met:

(a) The two-way real-time audiovisual technology must allow direct, contemporaneous interaction by sight and sound between the individual signing the document (the “signatory”) and the witness(es).

(b) The interaction between the signatory and the witness(es) must be recorded and preserved by the signatory or the signatory’s designee for a period of at least three years, unless a law of this state requires a different period of retention.

(c) The signatory must affirmatively represent either that the signatory is physically situated in this state, or that the signatory is physically located outside the geographic boundaries of this state and that either of the following apply:

(1) The document is intended for filing with or relates to a matter before a court governmental entity, public official, or other entity subject to the jurisdiction of this state; or

(2) The document involves property located in the territorial jurisdiction of this state or a transaction substantially connected to this state.

(d) The signatory must affirmatively state during their interaction with the witness(es) on the two-way real-time audiovisual technology what document they are executing.

(e) Each title page and signature page of the document being witnessed must be shown to the witness(es) on the two-way real-time audiovisual technology in a manner clearly legible to the witness(es), and every page of the document must be numbered to reflect both the page number of the document and the total number of pages of the document.

(f) Each act of signing the document must be captured sufficiently up close on the two-way real-time audiovisual technology for the witness(es) to observe.

(g) The signatory or the signatory’s designee must transmit by fax, mail, or electronic means a legible copy of the entire signed document directly to the witness(es) within 72 hours of when it is executed.

(h) Within 72 hours of receipt, the witness(es) must sign the transmitted copy of the document as a witness and return the signed copy of the document to the signatory or the signatory’s designee by fax, mail, or electronic means.

7. Notwithstanding any law or regulation of this state to the contrary, absent an express prohibition in the document against signing in counterparts, any document signed under this order may be signed in counterparts.

8 A guardian, guardian ad litem, or visitor may satisfy any requirement concerning a visit with a person, including but not limited to a visit in the physical presence of a person under the Estates and Protected Individuals Code, 1998 PA 386, as amended, MCL 700.1101 et seq., by instead conferring with that person via two-way real-time audiovisual technology that allows direct, contemporaneous interaction by sight and sound between the person being visited and the guardian, guardian ad litem, or visitor.

9. Any law of this state requiring an individual to appear personally before or be in the presence of either a notary at the time of a notarization or a witness at the time of attestation or acknowledgment shall be satisfied if the individual, the witness(es), and/or the notary are not in the physical presence of each other but can communicate simultaneously by sight and sound via two-way real-time audiovisual technology at the time of the notarization, attestation, or acknowledgment.

10. For the duration of this order and any order that may follow from it, financial institutions and registers of deeds must not refuse to record a tangible copy of an electronic record on the ground that it does not bear the original signature of a person, witness, or notary, if the notary before whom it was executed certifies that the tangible copy is an accurate copy of the electronic record.

11. Strict compliance with section 9(2) of the Michigan Law on Notarial Acts, as amended, MCL 55.269(2), is temporarily suspended to the extent necessary to extend until October 31, 2020 the validity of a notarial commission that expired or is set to expire between March 1, 2020 and October 31, 2020.

12. For purposes of the “verified user agreement” requirement of section 4 of the URPERA, MCL 565.844(4), a county recording office must deem all financial institutions and all licensed title insurers or their employed or contracted settlement agents as covered by a verified user agreement for the duration of this order and any order that may follow from it. The recorder may ask the financial institution or title insurance company for verification of a notary’s employment or contractual association.

13 As used in this order:

(a) “Electronic,” “electronic record,” “electronic signature,” “governmental agency,” “person,” and “transaction” mean those terms as defined under section 2 of the UETA, MCL 450.832.

(b) “Financial institution” means that term as defined in section 4(c) of the Michigan Strategic Fund Act, 1984 PA 270, as amended, MCL 125.2004(c).

14. Executive Order 2020-173 is rescinded.

15. This order is effective immediately and continues through October 31, 2020 at 11:59 pm.

Given under my hand and the Great Seal of the State of Michigan.

Date: September 29, 2020

Time 6:17 pm

[SEAL] GRETCHEN WHITMER

GOVERNOR

By the Governor:

JOCELYN BENSON

SECRETARY OF STATE

The message was referred to the clerk.

The following message from the Governor was received September 29, 2020 and read:

EXECUTIVE ORDER

No. 2020-188

Temporary restrictions on entry into health care facilities, residential care

facilities, congregate care facilities, and juvenile justice facilities

Rescission of Executive Order 2020-174

This executive order extends the visitation restrictions of Executive Order 2020-174 to protect Michigan’s most vulnerable populations living in congregate settings. The Michigan Department of Health and Human Services remains empowered to specify exceptions to these restrictions.

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On August 21, 2020, the Court of Appeals ruled that the Governor’s declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs clearly fell within the scope of the Governor’s authority under the EPGA.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. Except as otherwise provided by the order of the Director of the Department of Health and Human Services (DHHS), all health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must prohibit from entering their facilities any visitors that: are not necessary for the provision of medical care, the support of activities of daily living, or the exercise of power of attorney or court-appointed guardianship for an individual under the facility’s care; are not a parent, foster parent, prospective adoptive parent, or guardian of an individual who is 21 years of age or under and who is under the facility’s care; are not visiting an individual under the facility’s care that is in serious or critical condition or in hospice care; and are not visiting under exigent circumstances or for the purpose of performing official governmental functions.

2. All health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must perform a health evaluation of all individuals that are not under the care of the facility each time the individual seeks to enter the facility, and must deny entry to those individuals who do not meet the evaluation criteria. The evaluation criteria must include, at a minimum, symptoms of a respiratory infection, such as fever, cough, or shortness of breath; contact in the last 14 days with someone with a confirmed diagnosis of COVID-19; and other criteria specified by the Director of DHHS.

3. Any staff member or visitor of a residential care facility, congregate care facility, or juvenile justice facility must wear a covering over his or her nose and mouth when indoors or within six feet of another person.

4. While the restrictions of this order are in place, all health care facilities, residential care facilities, congregate care facilities, and juvenile justice facilities must make best efforts to facilitate visitations with individuals under their care by phone or other electronic communication platforms to the fullest extent possible, consistent with normal visitation policies.

5. For purposes of this order, “residential care facilities” includes, but is not limited to, homes for the aged, nursing homes, adult foster care facilities, hospice facilities, substance abuse disorder residential facilities, independent living facilities, and assisted living facilities.

6. The Director of DHHS may issue orders and directives to implement this order, including to specify exceptions to section 1 of this order, and to specify additional evaluation criteria under section 2 of this order.

7. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order shall constitute a misdemeanor.

8. Executive Order 2020-174 is rescinded.

9. This order is effective immediately.

Given under my hand and the Great Seal of the State of Michigan.

Date: September 29, 2020

Time: 6:19 pm

[SEAL] GRETCHEN WHITMER

GOVERNOR

By the Governor:

JOCELYN BENSON

SECRETARY OF STATE

The message was referred to the clerk.

The following message from the Governor was received September 29, 2020 and read:

EXECUTIVE ORDER

No. 2020-189

Temporary COVID-19 protocols for entry into Michigan Department of

Corrections facilities and transfers to and from Department custody; temporary

recommended COVID-19 protocols and enhanced early-release authorization for

county jails, local lockups, and juvenile detention centers

Rescission of Executive Order 2020-170

The novel coronavirus presents an unusually deadly threat to people living in congregate settings like jails and prisons. In order to protect these vulnerable people, I took swift action in March 2020 to stem the tide of COVID-19 in prisons and jails by ordering a suspension of transfers from jails to prisons, and requiring the Department of Corrections to implement certain risk reduction protocols. Under this order, jails were allowed to resume transfers only upon demonstrating that they had implemented comparable risk reduction protocols. Michigan continues to be a leader in testing for COVID-19. Our state now conducts the eighth-highest number of daily tests and requires testing in congregate settings like nursing homes and agricultural worker housing. In light of the ongoing threat of COVID-19 to jail and prison populations, and the increased availability of testing in our state, it is now reasonable and necessary to require entry, transfer, and release testing of inmates in Michigan prisons, and to allow transfers only from jails that implement comparable testing protocols.

Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On August 21, 2020, the Court of Appeals ruled that the Governor’s declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs clearly fell within the scope of the Governor’s authority under the EPGA.

On September 29, 2020, I issued Executive Order 2020-186, again finding that the COVID- 19 pandemic constitutes a disaster and emergency throughout the State of Michigan. Thatorder constituted a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. And, to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act when emergency and disaster conditions exist yet the legislature had declined to grant an extension request, that order also constituted a state of emergency and state of disaster declaration under that act.

Acting under the Michigan Constitution of 1963 and Michigan law, I find it reasonable and necessary, for the reasons outlined above, to order:

1. Transfers from jails to prisons. All transfers into the custody of the Department of Corrections (“Department”) are temporarily suspended unless the transferring jail or local lockup satisfactorily implements both the risk reduction protocols described in section 2 and the testing protocols described in section 3.

(a) Beginning seven days from the effective date of this order, and no more than once every seven days, a jail or local lockup may request that the Director of the Department (“Director”) determine that the jail or lockup has satisfactorily implemented both the risk reduction protocols described in section 2 and the testing protocols described in section 3.

(b) Upon inspection, if the Director determines that a jail or local lockup has satisfactorily implemented risk reduction protocols and testing protocols, transfers from that jail or lockup will resume in accordance with those protocols.

(c) Jails and local lockups must provide documentation of each transferee’s testing history upon transfer. The Director may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.

(d) Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the Director has determined that such county jail or local lockup has satisfactorily implemented both the risk reduction protocols described in section 2 and the testing protocols described in section 3.

2. Risk reduction protocols. The Department must implement risk reduction protocols to address COVID-19, including the following:

(a) Screening all persons arriving at or departing from a facility, including staff, inmates, vendors, and any other person entering the facility, in a manner consistent with guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such screening includes a temperature reading and obtaining information about travel and any contact with persons under investigation for COVID-19 infection.

(b) Isolating and testing any inmate who has one or more of the principal symptoms of COVID‑19, including fever, sore throat, a new uncontrolled cough that causes difficulty breathing, diarrhea, vomiting, abdominal pain, new onset of a severe headache, and new loss of taste or smell.

(c) Restricting all indoor inmate visitation, except for service providers (including but not limited to educational, legal, and medical professionals), conducting any visitation without physical contact to the extent feasible.

(d) Coordinating with local public health departments on isolation plans and outbreak response.

(e) Notifying the local public health department of any suspected or confirmed case of COVID‑19.

(f) Providing, to the fullest extent possible, appropriate personal protective equipment to all staff as recommended by the CDC.

(g) To the extent feasible, opening windows and doors, and using fans, to increase air circulation; considering taking additional steps to improve ventilation in the facility, in consultation with an HVAC professional, based on local environmental conditions.

(h) Conducting routine cleaning and sanitizing consistent with CDC guidance, as provided at https://www.cdc.gov/coronavirus/2019-ncov/community/correctiondetention/index.html.

(i) Ensuring access to personal hygiene products for inmates and correctional staff, including soap and water sufficient for regular handwashing.

(j) Ensuring that protective laundering protocols are in place.

(k) Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.

(l) Requiring inmates and staff to practice social distancing to the fullest extent feasible, and to wear facial coverings when maintaining six feet of social distance from persons housed separately is not possible.

(m) Minimizing crowding, which may include scheduling more times for meal and recreation to reduce person-to-person contact.

(n) During transport, ensuring that staff and inmates wear facial coverings and maintain appropriate social distance, including by reducing vehicle capacity.

3. Testing protocols. Consistent with guidance issued by the Michigan Department of Health and Human Services, the Department must conduct COVID-19 diagnostic testing in all of its facilities as follows (obtaining consent of the individual or other person legally authorized to make medical care decisions for the individual):

(a) Except as otherwise provided in this subsection, test all inmates entering a facility at least once, and no more than 48 hours after entry, or in the 72 hours prior to intake. Although testing is recommended for all inmates entering a facility, this requirement does not apply to inmates held outside general population, housed in single cells (i.e. without other inmates), released within 24 hours, and provided with educational materials on the importance of testing and contact tracing.

(b) Test any inmate scheduled to be transferred to another facility, including a Department facility, within 72 hours prior to transfer. The test conducted pursuant to subsection (a) satisfies the requirements of this subsection if conducted within the 72 hours prior to transfer.

(c) Test any inmate scheduled for release within 72 hours prior to release. The test conducted pursuant to subsection (a) satisfies the requirements of this subsection if conducted within the 72 hours prior to transfer. An inmate must not be detained solely because they refuse consent for a COVID-19 test or because of positive COVID-19 status, but the Department must not release an inmate into any other congregate setting if that inmate is in isolation protocol.

(d) In case of a sustained outbreak (any confirmed positive case identified within the last 14 days epidemiologically linked to another positive case within the same facility) or other high-risk situation, conduct ongoing testing coupled with contact tracing, in coordination with the local public health department.

(e) Isolate and medically manage any inmate who tests positive for COVID-19 as appropriate. Except for transfers to isolation units, to manage medical needs, or for exigent security reasons, inmates testing positive should not be transferred to another corrections facility or other congregate setting, unless they meet the following criteria:

(1) At least 10 days have passed since symptom onset, except in cases in which infection-control experts recommend longer isolation (e.g., up to 20 days in severely immunocompromised persons), and;

(2) At least 24 hours have passed since resolution of fever without the use of fever-reducing medications and;

(3) Other symptoms have improved.

(f) Isolate any inmate who refuses a test for COVID-19 when required to be tested for 14 days. Except for transfers to isolation units (including isolation units at another correctional facility), to manage medical needs, or for exigent security reasons, inmates held in isolation under this subsection should not be transferred to another corrections facility or other congregate setting during this 14-day isolation period.

(g) In the event that a former inmate who has been released tests positive for COVID-19, the Department must make reasonable efforts to notify that individual of their tests (such as calling the number provided by that individual) or arrange for an alternative notification method.

4. State assistance for expanded testing.

(a) The Department of Health and Human Services must provide direct assistance with testing supplies, specimen collection, and laboratory processing to jails and local lockups that request assistance, as resources permit. Jails and local lockups may submit requests for assistance to MDHHS-cjtestingrequests@michigan.gov.

(b) A jail or local lockup that receives assistance yet still cannot comply with the testing protocols described in section 3 due to delays in test processing time may request adjustments to the timing requirements of section 3, which the Director may grant in her sole discretion.

5. Priority release. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the capacity and procedural requirements regarding county jail overcrowding states of emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily suspended. While this order is in effect, all actions that would be authorized under the CJOA in the event of a declaration of a county jail overcrowding state of emergency are authorized and shall remain authorized without regard to any reduction in jail population or any other such limitations on the duration of authorization imposed by the CJOA. Anyone authorized to act under this section is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:

(a) Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.

(b) Anyone who is incarcerated for a traffic violation.

(d) Anyone with behavioral health problems who can safely be diverted for treatment.

6. Reimbursement to counties. The State Budget Office must ensure that counties are reimbursed for lodging inmates who would have been transferred into the Department’s custody if not for the suspension of transfers.

7. Juvenile detention centers. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:

(a) Adopting the risk reduction protocols and testing protocols described in sections 1 and 2.

(b) Removing from the general population any juveniles who have COVID-19 symptoms.

(c) Eliminating any form of juvenile detention or residential facility placement except for juveniles who are determined to be a substantial and immediate safety risk to themselves or others.

(d) Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.

(e) To the fullest extent possible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.

8. Juveniles on court-ordered probation. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home confinement for technical violations of probation and any requirements for in-person meetings with probation officers are temporarily suspended.

9. Effective Date. This order is effective immediately and continues through October 30, 2020 at 11:59 pm.

10. Effects on prior orders. Executive Order 2020-170 is rescinded.

Given under my hand and the Great Seal of the State of Michigan.

Date: September 29, 2020

Time: 6:21 pm

[SEAL] GRETCHEN WHITMER

GOVERNOR

By the Governor:

JOCELYN BENSON

SECRETARY OF STATE

The message was referred to the clerk.

The following message from the Governor was received September 29, 2020 and read:

EXECUTIVE ORDER

No. 2020-190

Temporary safety measures for food-selling establishments and pharmacies and

temporary relief from requirements applicable to the renewal of licenses for the

food-service industry

Rescission of Executive Order 2020-178

Beginning in May 2020, I put in place special protocols to minimize the risk of COVID-19 transmission in food-selling establishments and pharmacies, as well as provide temporary relief to Michigan’s food-service industry, local health departments, and the Michigan Department of Agriculture and Rural Development (MDARD). Because buying food and medicine remains an unavoidable source of infection risk for many Michiganders, and the COVID-19 pandemic remains a serious and deadly threat, it is reasonable and necessary to again extend these policies. Given that most restaurants have resumed service, it is also reasonable and necessary to provide a date by which normal licensing requirements will resume.

Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the EPA, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the EMA.

Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v. Whitmer. On August 21, 2020, the Court of Appeals ruled that the Governor’s declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs clearly fell within the scope of the Governor’s authority under the EPGA.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. Until November 30, 2020, strict compliance with sections 3119, 4109, 4113, and 4115 of the Food Law, 92 PA 2000, as amended, MCL 289.3119, MCL 289.4109, MCL 289.4113, and MCL 289.4115, is temporarily suspended to the extent necessary to extend the deadline for local health departments to submit fees under section 3119, and to extend the license and registration expiration dates under sections 4109 and 4115.

2. Late fees shall not be assessed under sections 4113 or 4115 during the 2020–2021 license year.

3. Strict compliance with subsection 6137 of the Food Law, MCL 289.6137, is suspended to the extent necessary to make a license holder eligible for a special transitory temporary food unit for the 2020–2021 licensing year, even if the license holder received only 1 evaluation during the 2019–2020 licensing year.

4. Executive Order 2020-184, Workplace Safeguards, is amended to add section 22, which provides: “22. Food-selling establishments and pharmacies. Food-selling establishments and pharmacies (meaning grocery stores, convenience stores, restaurants that sell groceries or food available for takeout, and any other business that sells food) must:

(a) Provide access to handwashing facilities, including those available in public restrooms;

(b) Allow employees sufficient break time to wash hands as needed;

(d) Use best efforts to provide employees and customers access to an alcohol-based hand sanitizer that contains at least 60% alcohol, as recommended by the Centers for Disease Control and Prevention (CDC);

(e) Use best efforts to provide disinfecting wipes at cash registers and entrance points for customers to disinfect carts and baskets, as well as at other appropriate locations;

(f) Ensure that both employees and customers remain at least six feet apart to the maximum extent possible, including during employee breaks, for example by reviewing floor plans, creating temporary barriers, designating aisles as oneway only, and demarcating queueing distances;

(g) Close self-serve prepared food stations such as salad bars;

(h) Eliminate free samples and tasting stations;

(i) Adopt procedures to meet the environmental cleaning guidelines set by the CDC, including by cleaning and disinfecting frequent touchpoints throughout the day such as point of sale terminals at registers, shopping carts, and shopping baskets;

(j) Prohibit employees who are sick from reporting to work and send employees home if they display symptoms of COVID-19;

(k) Accommodate employees who fall within a vulnerable population by providing lower-exposure work assignments or giving them the option to take an unpaid leave of absence with a return date of October 31, 2020 or later. Nothing in this executive order abrogates any right to disability benefits. Employees who take an unpaid leave of absence as described in this subsection are encouraged to apply for unemployment benefits;

(l) Close to the public for sufficient time each night to allow stores to be properly sanitized;

(m) Encourage cash transactions to be processed at self-checkout kiosks when possible;

(n) Grocery stores and pharmacies must create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant people, and those with chronic conditions, including heart disease, diabetes, and lung disease; and

(o) Require vendors moving between food-selling establishments to frequently clean and disinfect frequent touch points.”

5. Executive Order 2020-178 is rescinded.

6. This order is effective immediately.

Given under my hand and the Great Seal of the State of Michigan.

Date: September 29, 2020

Time: 6:23 pm

[SEAL] GRETCHEN WHITMER

GOVERNOR

By the Governor:

JOCELYN BENSON

SECRETARY OF STATE

The message was referred to the clerk.

Introduction of Bills

Rep. Webber introduced

House Bill No. 6290, entitled

A bill to amend 1980 PA 299, entitled “Occupational code,” by amending section 1809 (MCL 339.1809), as amended by 2020 PA 138.

The bill was read a first time by its title and referred to the Committee on Regulatory Reform.

Rep. Webber introduced

House Bill No. 6291, entitled

A bill to amend 1968 PA 251, entitled “Cemetery regulation act,” (MCL 456.521 to 456.543) by adding section 12b.

The bill was read a first time by its title and referred to the Committee on Regulatory Reform.

By unanimous consent the House returned to the order of

Messages from the Senate

House Bill No. 4332, entitled

A bill to amend 1994 PA 451, entitled “Natural resources and environmental protection act,” by amending sections 40102, 40103, and 40114 (MCL 324.40102, 324.40103, and 324.40114), section 40102 as amended by 2015 PA 24, section 40103 as amended by 2016 PA 382, and section 40114 as amended by 2018 PA 390, and by adding section 40111d.

The Senate has passed the bill and pursuant to Joint Rule 20 inserted the full title.

The House agreed to the full title.

The bill was referred to the Clerk for enrollment printing and presentation to the Governor.

House Bill No. 4686, entitled

A bill to amend 1996 IL 1, entitled “Michigan Gaming Control and Revenue Act,” by amending section 25 (MCL 432.225), as amended by 2019 PA 158.

The Senate has passed the bill by a 3/4 vote, ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The House agreed to the full title.

The bill was referred to the Clerk for enrollment printing and presentation to the Governor.

House Bill No. 5194, entitled

A bill to amend 1974 PA 300, entitled “Motor vehicle service and repair act,” by amending section 2 (MCL 257.1302), as amended by 2016 PA 430.

The Senate has passed the bill, ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The House agreed to the full title.

The bill was referred to the Clerk for enrollment printing and presentation to the Governor.

House Bill No. 5267, entitled

A bill to amend 2001 PA 142, entitled “Michigan memorial highway act,” (MCL 250.1001 to 250.2084) by adding section 1050.

The Senate has passed the bill, ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The House agreed to the full title.

The bill was referred to the Clerk for enrollment printing and presentation to the Governor.

House Bill No. 5602, entitled

A bill to amend 1972 PA 230, entitled “Stille-DeRossett-Hale single state construction code act,” by amending section 28a (MCL 125.1528a), as amended by 2018 PA 332.

The Senate has passed the bill, ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The House agreed to the full title.

The bill was referred to the Clerk for enrollment printing and presentation to the Governor.

House Bill No. 4459, entitled

A bill to amend 1978 PA 368, entitled “Public health code,” (MCL 333.1101 to 333.25211) by adding article 18.

The Senate has substituted (S-7) the bill.

The Senate has passed the bill as substituted (S-7), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The Speaker announced that pursuant to Rule 42, the bill was laid over one day.

House Bill No. 4460, entitled

A bill to amend 1978 PA 368, entitled “Public health code,” (MCL 333.1101 to 333.25211) by adding section 24509 to article 18.

The Senate has substituted (S-6) the bill.

The Senate has passed the bill as substituted (S-6), ordered that it be given immediate effect and pursuant to Joint Rule 20, inserted the full title.

The Speaker announced that pursuant to Rule 42, the bill was laid over one day.

House Bill No. 4990, entitled

A bill to amend 1978 PA 368, entitled “Public health code,” by amending section 16221 (MCL 333.16221), as amended by 2018 PA 463.

The Senate has substituted (S-1) the bill.

The Senate has passed the bill as substituted (S-1), ordered that it be given immediate effect and amended the title to read as follows:

A bill to amend 1978 PA 368, entitled “An act to protect and promote the public health; to codify, revise, consolidate, classify, and add to the laws relating to public health; to provide for the prevention and control of diseases and disabilities; to provide for the classification, administration, regulation, financing, and maintenance of personal, environmental, and other health services and activities; to create or continue, and prescribe the powers and duties of, departments, boards, commissions, councils, committees, task forces, and other agencies; to prescribe the powers and duties of governmental entities and officials; to regulate occupations, facilities, and agencies affecting the public health; to regulate health maintenance organizations and certain third party administrators and insurers; to provide for the imposition of a regulatory fee; to provide for the levy of taxes against certain health facilities or agencies; to promote the efficient and economical delivery of health care services, to provide for the appropriate utilization of health care facilities and services, and to provide for the closure of hospitals or consolidation of hospitals or services; to provide for the collection and use of data and information; to provide for the transfer of property; to provide certain immunity from liability; to regulate and prohibit the sale and offering for sale of drug paraphernalia under certain circumstances; to provide for the implementation of federal law; to provide for penalties and remedies; to provide for sanctions for violations of this act and local ordinances; to provide for an appropriation and supplements; to repeal certain acts and parts of acts; to repeal certain parts of this act; and to repeal certain parts of this act on specific dates,” by amending section 16221 (MCL 333.16221), as amended by 2020 PA 135.

The Speaker announced that pursuant to Rule 42, the bill was laid over one day.

House Bill No. 4991, entitled

A bill to amend 1978 PA 368, entitled “Public health code,” by amending section 16226 (MCL 333.16226), as amended by 2018 PA 463.

The Senate has substituted (S-1) the bill.

The Senate has passed the bill as substituted (S-1), ordered that it be given immediate effect and amended the title to read as follows:

The Speaker announced that pursuant to Rule 42, the bill was laid over one day.

Senate Bill No. 20, entitled

A bill to amend 1931 PA 328, entitled “The Michigan penal code,” by amending section 317a (MCL 750.317a), as added by 2005 PA 167.