By Ronald S. Nixon

On October 2, 2020, the Michigan Supreme Court issued an opinion that overturned Governor Whitmer’s numerous executive orders issued in response to the pandemic. Despite the ruling, employers and businesses operating during the pandemic should not assume that this decision eliminated all restrictions on their operations.  For instance, the opinion had no effect on CDC recommendations or state and federal OSHA regulations, the latter of which still have the force of law and are very similar to the executive orders.  Moreover, other state and local health and safety agencies have authority to impose restrictions to control spread of COVID-19 and have issued orders to fill in some of the void that some believe the court created, which are the subject of this article.

In the week following the decision, Robert Gordon, the Director of the Michigan Department Health and Human Services, issued several orders under seemingly broad authority granted by the Public Health Code to prohibit gatherings to control epidemics.  Two of these orders, one issued on October 5 the other on October 9, 2020, apply generally and have the following effects that closely resemble the previous executive orders:

  • Face Coverings Are Still Required.   Businesses, government offices, schools, childcare organizations, and other operations must not allow indoor gatherings unless they require individuals to wear a face covering. A “gathering” is defined as “any occurrence where two or more persons from more than one household are present in a shared space.”  Business owners are still required to post signs informing customers of their obligation to wear a mask and not to enter if they have recently been sick.  A business owner may accept a verbal representation that one of the exceptions to mask wearing exists (e.g., cannot medically tolerate it) but may not assume an exception exists because someone enters their establishment without a mask.
  • Attendance Limitations. Attendance at indoor and outdoor gatherings are limited as follows:
    • Indoor Gatherings:  Indoor gatherings of up to 10 people are permitted.  Masks are strongly recommended in residential settings and required in non-residential settings.  Indoor gatherings of more than 10 and up to 500 people are permitted at non-residential settings if each person wears a mask and attendance is limited to 20 percent of fixed seating capacity (25 percent in Region 6) or 20 persons per 1,000 square feet of floor space (25 in region 6).
    • Outdoor Gatherings. Outdoor gatherings of up to 100 people are permitted.  Masks are strongly recommended in residential settings and required in non-residential settings. Outdoor gatherings of more than 100 and up to 1,000 people are permitted at non-residential settings if each person wears a mask and attendance is limited to 30 percent of fixed seating capacity or 30 persons per 1,000 square feet of floor space.
  • Capacity Limitations. In addition to attendance limitations, gatherings at various types of facilities have the following capacity restrictions:
    • Public Facilities, such as retail stores, libraries, and museums, may not exceed 50% total occupancy limits.
    • Food Service Establishments, such as restaurants and bars, are limited to 50% of normal seating capacity, must maintain six feet between each party, must close indoor common areas where people congregate (dance floors, pool tables, and the like), and may not serve alcohol onsite except where parties are seated and separated from one another by at least six feet and do not intermingle.
    • Recreational Sports and Exercise Facilities, such as gyms, recreation centers, bowling alleys, roller and ice rinks, and trampoline parks, may not exceed 25% of total occupancy limits or gatherings are not allowed if it is not possible to maintain a distance of six feet between workout stations.
    • Professional Sports and Entertainment Facilities, such as arenas, cinemas, concert halls, performance and sporting venues, stadiums and theaters, can have gatherings only if the venue can ensure there is six feet of distance between patrons not of the same household.
    • Pools. Outdoor pools must not exceed 50% of capacity limits and indoor pools must not exceed 25% of capacity limits
    • Casinos (non-tribal). Non-tribal casinos may not exceed 15% of total occupancy limits.
  • Workplaces. The new orders adopt similar employee protections in the workplace:
    • Workplace gatherings are prohibited if they are not necessary to perform job duties, if employees without face coverings cannot maintain six feet of distance from others, if employees without face coverings occupy the same shared space, or if they include any person who is subject to a CDC recommendation or an order of a health professional to isolate or quarantine or who is awaiting test results after experiencing symptoms of COVID-19. 
    • All businesses that require their employees to gather with other persons must conduct a daily entry self-screening for all employees or contractors entering the workplace, including a questionnaire covering symptoms of COVID-19 and suspected or confirmed exposure to the virus. 
    • Employees who experience COVID-19 symptoms may not return to work unless they are cleared to do so by their health care professional, or the following conditions are met:
      • 24 hours have passed since the resolution of fever without medication, and
      • 10 days have passed since their symptoms first appeared or since they were administered a positive COVID-19 test, and
      • Other symptoms have improved.

The safest recommendation for all employers and businesses open to the public is to continue to maintain procedures already put in place under the executive orders for protecting employees and customers while making modest adjustments that are permitted or required by the new orders being issued.  While these orders are different in some respects, they are not very different.


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