On Friday, July 10, 2020, Governor Gretchen Whitmer signed Executive Order 2020-147, requiring the wearing of protective face coverings in indoor places of public accommodation.
2020-147 additionally requires that businesses and all other indoor places of accommodation, including government offices open to the public, deny entry or service to anyone not wearing a face covering. Indoor spaces open to the public must also post signs at all entrances instructing customers of their legal obligation to wear a face covering while inside.
Masks are not required for those younger than five years old, for those who are unable to medically tolerate the wearing of a mask, or when eating, drinking, exercising and when temporary removal of the mask is essential to perform a service. The Order also requires face coverings to be worn (i) outdoors whenever an individual in unable to consistently maintain a distance of six feet or more from individuals who are not members of their household, (ii) when waiting for or riding on public transportation, or (iii) while in a taxi or ride-sharing vehicle or when using a private car service.
Businesses found to be in violation of the Order are subject to operating license suspension or revocation under Section 92 of the Administrative Procedures Act of 1969. (1969 PA 306, as amended, MCL 24.292(2)) Willful noncompliance of the Order constitutes a misdemeanor, and imposes a fine of up to $500 for each violation.
While 2020-147 applies most directly to individuals and places which remain open to the public, the requirements operate in conjunction with other safety protocols promulgated by Executive Order.
New Employer Requirements
Revised workplace safety protocols were issued simultaneously with 2020-147 in Executive Order 2020-145. 2020-145 replaces Order 2020-114, and, like its predecessor workplace safety orders, promulgates extensive industry-specific workplace protocols.
The two main changes are that employers now have to provide training and posters for employees in native languages – so if the employer has a large workforce of Hispanics, for instance, then they must post and train in Spanish. The order also added a set of new safety protocols for meat and poultry processing facilities.
More noteworthy, the new Executive Order requires face coverings to be worn in all shared spaces, including in person meetings, restrooms, and hallways, and whenever employees cannot consistently maintain six feet of separation from other individuals. For instance, in businesses that have common areas such as kitchens or where employees must use common bathrooms, they must wear a mask. This would also apply in areas where employees work in cubicles and it is not possible to maintain employee separation.
Businesses must enforce the Executive Order requirements. If an employee complains the employer is not enforcing a face mask requirement, the employee could file a complaint with the Michigan Attorney General’s Office and allege claims under the OSHA requirements for maintaining a safe workplace. Employers who terminate or discipline employees who file such complaints or report unsafe working conditions could be subject to criminal and civil liability. Employers would be well-served to seek counsel for employment-related decisions concerning employee discipline related to employees refusing to wear masks or reporting others for doing so.
Finally, Executive Order 2020-36, prohibiting discrimination for individuals staying home from work because of a COVID-19 diagnosis or symptoms, or who are in close contact with sick individuals, remains in effect.
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