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Michigan Supreme Court Lansing, Michigan

Opinion
KENT A. MCNEIL, FRANKLIN E. FISHER, and ROGER GRIFFIN, Plaintiffs, and SCOTT WAY and JEFF LEGATO, Plaintiffs-Appellants, v CHARLEVOIX COUNTY and NORTHWEST MICHIGAN COMMUNITY HEALTH AGENCY, Defendants-Appellees.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

JULY 21, 2009

No. 134437

BEFORE THE ENTIRE BENCH WEAVER, J. At issue in this case is whether MCL 333.2441(1) authorizes a local health department to create, and a county board of commissioners to approve, regulations that control smoking in the workplace. Additionally at issue is whether such a regulation, providing employees with a private cause of action to seek its enforcement, interferes with Michigan's at-will employment doctrine.

I. The Court of Appeals Decision The Court of Appeals concluded that the regulation at issue is authorized by statute and was promulgated in a manner consistent with the statutory requirements. Furthermore, the Court of Appeals concluded that the private cause of action created by the regulation fits within public policy exceptions to Michigan's at-will employment doctrine. We agree with the Court of Appeals' conclusions. In affirming, we adopt as our own the Court of Appeals' opinion, McNeil v Charlevoix Co, 275 Mich App 686; 741 NW2d 27 (2007)1: In this action for declaratory relief, plaintiffs appeal as of right the trial court's order denying their motion for summary disposition. We affirm. I. Basic Facts and Procedural History Defendant Northwest Michigan Community Health Agency (NMCHA) is a multicounty district health department organized by Antrim, Charlevoix, Emmet, and Otsego counties under Part 24 of the Public Health Code (PHC), MCL 333.2401 et seq.1 In purported furtherance of its duty to protect the public health and welfare in its district, the NMCHA promulgated what it entitled the Public Health Indoor Air Regulation of 2005 (the regulation). In addition to prohibiting smoking in all public places, the regulation requires employers who do not wholly prohibit smoking at an enclosed place of employment to designate an NMCHA-approved smoking room, which is required by the regulation to be "a separate enclosed area that is independently ventilated so that smoke does not enter other non-smoking areas of the worksite." The regulation additionally We have eliminated only that portion of the Court of Appeals opinion that addresses the issue of preemption, because we do not believe that a preemption analysis is necessary for the resolution of the issues before us at this time. We do not disturb the Court of Appeals ruling on that issue.
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prohibits an employer from discharging, refusing to hire, or otherwise retaliating against an employee for exercising his or her right to the smoke-free environment afforded by the regulation. After the regulation was approved by each of the four counties, plaintiffs, each of whom resides or operates a business within defendant Charlevoix County, brought this action to invalidate the regulation by judicial declaration that the NMCHA was without authority to promulgate such a regulation and that the regulation itself was preempted by Part 126 of the PHC, MCL 333.12601 et seq., which prohibits smoking in buildings used by the public except in designated areas. In seeking summary disposition on these grounds, plaintiffs argued that nothing in Part 126 of the PHC, which is also known as the Michigan Clean Indoor Air Act (MCIAA),2 authorizes a local health department to enforce or augment the smoking restrictions set by the MCIAA. Plaintiffs further argued that

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Michigan Law