By Zachary Gorchow
Executive Editor and Publisher
Posted: March 30, 2021 4:17 PM

For the past year, Democratic Governor Gretchen Whitmer and the Republican-led Legislature have agreed on little to nothing when it comes to the COVID-19 pandemic.

Ms. Whitmer has favored an aggressive response led by the executive branch through emergency orders. The governor has said she is willing to work with the Legislature and would like to see it pass a bill making the state's mask mandate a statute instead of a public health order. But she's also said many times she is not willing to negotiate on public health with the Legislature and will take the executive actions she deems necessary to protect health and safety.

The Republican legislative majorities have mostly taken a hands-off posture when it comes to how government should respond to the pandemic. They have opposed a mask mandate and fumed that instead of working with the Legislature, Ms. Whitmer has ruled by executive fiat. But they by and large have not taken action to set government regulations designed to slow the spread of the virus.

Until last week.

The Senate, on a party-line 20-15 vote with Republicans in support and Democrats in opposition, passed a bill (SB 250) that would set clear metrics on when restaurants, bars and event spaces can be open and to what extent they can be open depending on the prevalence of the virus.

The legislation was largely modeled on a proposal from the Michigan Restaurant and Lodging Association, whose members and the employees of those members have been battered by the pandemic.

From mid-March through mid-June last year, dine-in service at restaurants and bars was closed under Ms. Whitmer's orders. Then they could open at half capacity. Then in mid-November, the Department of Health and Human Services closed dine-in service again amid the second wave. Restaurants and bars were allowed to reopen at 25 percent capacity in February and then were boosted to 50 percent capacity earlier this month.

The bill uses the positivity rate (the percentage of people tested for the virus who test positive) or the percentage of hospital beds occupied with COVID-19 patients as the metrics to determine the level of openness permitted.

I'm going to mention the positivity numbers only here for simplicity's sake. Here's the framework in the bill:

• If the average positivity rate during a seven-day period is less than 3 percent, restaurants, bars and event spaces (such as weddings and conferences) operate with no limits.
• If the average positivity rate during a seven-day period is between 3 to 7 percent, indoor dining occupancy drops to 50 percent and consumption of food and beverages can only take places in designated dining areas where people sit. Meetings and events at restaurants, bars and event spaces would be limited to 50 persons per 1,000 square feet with a maximum of 250 indoors and 500 outdoors.
• If the seven-day average positivity rate is more than 7 percent and up to 10 percent, the 50 percent capacity limit holds for restaurants and bars with the meeting/event limit dropping 25 people per 1,000 square feet and caps of 150 people indoors and 250 outdoors.
• If the seven-day positivity rate is more than 10 percent up to 15 percent, indoor dining is capped at 25 percent, meetings/events are limited to 15 people per 1,000 square feet with a maximum of 50 people indoors and 150 outdoors.
• If the seven-day positivity rate is greater than 15 percent up to 20 percent, dine-in service is closed and meetings/events are limited to 10 people from not more than two households.
• If the rate exceeds 20 percent for 14 days, then dine-in service is closed and meetings/events cannot take place at restaurants, bars and event venues.

As of Sunday, the state's seven-day positivity average was more than 12 percent, meaning under this bill, if it were to become law, restaurants and bars would be facing a stricter limit on capacity than they have now under DHHS order.

One difference, however, is that the bill does not require restaurants and bars to gather patron information for contact tracing. It only encourages it. DHHS orders currently require it.

Sunday and Monday both saw the positivity rate above 15 percent in Michigan. If that continues for another five days, under the bill, if it became law, dine-in service would close.

At present, and of course this could change, Ms. Whitmer seems very reluctant to reimpose restrictions. She's in something of a no-win position. The governor told Crain's Detroit Business on Monday that any decision she makes is going to leave many people unhappy. Republicans have fumed for months about the limits on restaurants. Now some of Ms. Whitmer's allies are frustrated that she is not reimposing restrictions with the state in the throes of a third wave of cases.

This bill seems to offer a path and one where both sides would give each other some cover. It would provide the clarity the industry says it needs. There's enough months' worth of reliable positivity data to see how it would affect the industry. It offers a clear metric on when the industry could operate free of restrictions. Based on the data, it provides in some ways a stricter rubric than what DHHS has in place now. It would have been more lenient during the second wave, however. Restaurants and bars would have been limited to 25 percent capacity in late November and most of December instead of closed outright.

Ms. Whitmer didn't seem wild about this proposal when asked about it a couple months ago, but she didn't reject it out of hand either.

After months and months of bitter disagreement on how the government responds to the pandemic, SB 250 will offer a telling signal.

Republicans in the Legislature and the Whitmer administration could talk about how to refine the bill so that it is satisfactory to all. Or the Republicans could quickly put the bill on the governor's desk and take their chances.

There is enough here to seem worthy of what has been all too uncommon in the last five months, however: discussion of a compromise between the executive and legislative branches.