Police: Don’t expect us to enforce Michigan’s confusing coronavirus lockdown

Jerome Kirby did as he was told and showed up for work at his job at a small manufacturing firm in Westland on Tuesday, the first day of Michigan Gov. Gretchen Whitmer’s stay-at-home order.

“We’re at work, but I don’t think we’re supposed to be here,” Kirby said. 

“I don’t want to get sick, and we could,” he said. “I just don’t think [my bosses] care.”

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Kirby, 40, was among a flood of readers who called or emailed Bridge Magazine about Whitmer’s order that took effect at 12:01 a.m Tuesday requiring everyone but “essential” workers to stay home.

Many workers posed a simple question with a complicated answer: Does it apply to me? 

The state of Michigan, local governments, police, attorneys and business groups have been bombarded with similar questions from both employers and employees confused by the governor’s order.

Who and how the order will be enforced remains unclear. Violators could face misdemeanors, but police aren’t likely to arrest scofflaws, said Bob Stevenson, a retired Livonia police chief who now leads the Michigan Association of Chiefs of Police. 

“I know there’s a lot of confusion out there, but as far as I know, the local chiefs are not going to be getting involved in determining who is and who is not essential personnel,” Stevenson told Bridge Magazine. 

“I mean, it’s not our order.”

Businesses as diverse as hotels and pawn shops and dry cleaners and liquor stores opened as usual Tuesday because Whitmer’s order includes numerous opt-outs and broad exemptions.

"I know there’s a lot of confusion out there, but as far as I know, the local chiefs are not going to be getting involved in determining who is and who is not essential personnel. I mean, it’s not our order.” -- Bob Stevenson, head of Michigan Association of Chiefs of Police

Among them: The mandate allows “critical” businesses to remain open, along with suppliers to those critical firms, and potentially even suppliers to those suppliers. 

Companies also can require employees to work to conduct “minimum basic operations,” including to “maintain the value of inventory and equipment.” It’s up to firms to designate who those critical workers are amid the global pandemic that has spread to more than 1,790 state residents and killed at least 24, as of Tuesday morning.

Construction firms that “maintain and improve essential public works like roads, bridges, the telecommunications infrastructure, and public health infrastructure” can remain open, the Whitmer administration said. 

So can construction companies that “improve the safety, sanitation, and essential operations” of residential homes, according to the state, or those that “provide necessary support to the work of the businesses' critical infrastructure workers.”

But that leaves a lot of “gray area,” said Jared Calhoun, CEO of JSC Construction, an interior and exterior remodeling firm in Davison. 

He sent two workers out on jobs Tuesday to repair a roof leak and furnace piping, “but other than that, until we know what is going on more, we’re kind of at a standstill for our work,” Calhoun said. 

He called and emailed the governor’s office seeking clarification but has not heard back, forcing him to pause other projects during what is usually a busy spring season. 

“We definitely stand for Americans standing together and trying to fight [the coronavirus] and not spread it, but we also stand for not making the economy crash,” Calhoun told Bridge Magazine. 

‘Not our order’

Whitmer and her administration have warned that business owners who violate the order by putting profits ahead of public safety will face repercussions, including possible fines or license suspension. 

Misdemeanors are punishable by fines of up to $500 and 90 days in jail. 

Workers who feel their employer is violating the order should contact their local law enforcement agency, said Jason Moon, a spokesman for the Michigan Department of Labor and Economic Opportunity. Michigan Attorney General Dana Nessel’s office offered the same advice after initially telling the public to call the governor’s constituent hotline. 

County sheriffs are directing workers to the attorney general office and the governor’s hotline, said Calhoun County Sheriff Matt Saxton, incoming executive director of the Michigan Sheriffs’ Association.

“Sheriffs across the state, if they have that conversation, are trying to educate employers and employees,” Saxton said. 

Deborah Gordon, an employment and civil rights attorney in Bloomfield Hills, scoffed at the idea of local law enforcement resolving an employer-employee dispute about an executive order issued under emergency authority. 

“Good luck with that,” she said. “That makes no sense to me.”

Whitmer’s executive order is not like a court order that provides clear guidance for law enforcement, Gordon said. Instead, it requires interpretation that the Whitmer administration is best suited to provide, she said.

“You now have a vague executive order — not a court order — and a police officer is supposed to enforce that?” she said. “I wish the police officers a lot of luck, because it’s too vague. And what are they going to do, arrest people?”

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Where to turn for answers

Whitmer’s order poses a conundrum for workers who feel unsafe but could be fired if they refuse to work for a company deemed “critical” and exempted from forced closure, Gordon said. 

Pharmacies remain open for obvious reasons, but does that mean checkout clerks who sell “knick knacks and tchotchkes” at the same store have to work? Gordon asked.

Most Michigan workers are at-will employees who can be fired at any time, for any reason. But it’s possible they could later sue an employer who had remained open in violation of Whitmer’s order under a “public policy tort claim” Gordon said. 

“If your employer is terminating you because he or she wants you in, and you were refusing to violate the order… that legal theory kicks in,” she said. But because of the unprecedented nature of the emergency order, “the case law really hasn’t been tested on this.”

The Whitmer administration is encouraging employers and employees to submit any questions about the order via email to LEO-Coronavirus@michigan.gov.

The state is “taking inventory of all of those,” said Moon. Residents who pose questions will initially get an automated response directing them to existing resources, but the state plans to respond to individual questions “once we have a firm answer,” he said. 

In the meantime, the Whitmer administration is addressing commonly asked questions online, where an online FAQ continues to grow. 

Many businesses have questions about the order, Jeff Donofrio, director of the Michigan Department of Labor and Economic Opportunity, wrote late Monday on Twitter.

“We're working to provide answers.  Best advice for now — make a judgement call.  If you're critical to an operation sustaining/protecting life, keep working, if you're not, stay home and help us save lives,” Donofrio wrote.

Donofrio noted the provision allowing businesses to maintain some in-person staffing for minimum basic operations, including animal care, security, payroll and coordination of remote workers.

Still sorting it out

As Bridge reported Monday, the exemptions could impact as many as 1 million of Michigan’s 4.3 million workers. Businesses that can stay open include liquor stores that sell food, home repair businesses and auto mechanics. 

Companies that don’t provide critical services themselves could also remain open if they provide supplies or services to critical industries, including health care, law enforcement, electric utilities and more.

That could be the case at Kirby’s company, a print shop and manufacturer where he cuts shingles that are sold to big-box home improvement stores, which are exempt from the governor’s order. 

“We were confused because last night we heard that the governor said everything closed down at 12,” Kirby said Tuesday morning, referencing the emergency alert the Whitmer administration sent to mobile phones across the state. 

“I called Homeland Security. We didn’t know who to call.”

A representative from the company declined to discuss Whitmer’s order with Bridge.

The order includes a host of broad exceptions, some of which the administration has attempted to clarify.

Bicycle repair shops, for instance, are supposed to close. But they can open if workers “provide maintenance for bicycles that other critical infrastructure workers use to get to their jobs,” according to the state, which expects “this condition will be satisfied very rarely.”

Lt. Gov. Garlin Gilchrist, speaking with local government officials on Tuesday morning, acknowledged the large volume of questions the governor’s order has sparked and encouraged them to funnel inquiries through the labor department. 

“The spirit of this order is to greatly reduce the number of people who are out and about unnecessarily,” he said. 

Officials in other states that have implemented stay-home orders in response to the coronavirus have suggested the mandates will not be heavily enforced. 

California Gov. Gavin Newsom, for instance, said he does not expect the need for police action because “social pressure already has led to social distancing throughout the state.”

Here in Michigan, officials are still sorting that out. 

“We’re only 12 hours into it,” said Stevenson, the executive director of the Michigan Association of Chiefs of Police. 

“A lot of this needs to be worked out. I assume there will be some clarifying documentation. But at the end of the day, if somebody has a letter from an employee saying they’re essential, I don’t see the police officer on the street trying to figure it out.”