Revised Michigan COVID-19 Health Order Re-institutes Business, Gathering Restrictions

Foley & Lardner LLPOn Sunday November 15th, Michigan Governor Gretchen Whitmer announced an extensive set of new restrictions aimed at slowing the spread of COVID-19 in the state. The Gatherings and Face Mask Order (the “Order”), issued by Michigan Department of Health and Human Services (“MDHHS”), reinstates numerous protocols first implemented by the Governor through executive order earlier in the year. The order takes effect at 12:00 a.m. Wednesday, November 18th and remains in force through December 8th.

In her Sunday evening press conference, Governor Whitmer stressed that the Order was being implemented in hopes of avoiding more restrictive “Stay at Home” orders like those issued throughout the spring.  Nonetheless, with a record 8,516 new in-state cases identified on November 13th and over 3,000 Michiganders currently hospitalized, the Order contains some of the most restrictive provisions seen in months. Under the Order: 

  • Face masks must continue to be worn in public and at all gatherings; 
  • Indoor in-person work is only allowed when doing that work remotely is impossible, and all workplace gatherings must adhere to the MIOSHA workplace safety requirements issued October 14, 2020; 
  • High schools, colleges, and universities must move to distance learning (middle and elementary schools may continue ongoing in-person learning operations);
  • Indoor gatherings are limited to 10 people from no more than two households;
  • Outdoor gatherings and funerals are limited to no more than 25 people; 
  • Businesses must deny entry or service to all persons refusing to wear face masks while gathered (subject to a number of exceptions); 
  • Theaters, moving theaters, stadiums, arcades, bowling centers, ice skating rinks and indoor water parks must be closed;
  • Group fitness classes are prohibited; 
  • Exercise facilities, personal care businesses, and businesses that provide in-home services must maintain records of patrons’ names, date and time of entry, and contact information to aid with COVID-19 contact tracing; and 
  • Retail stores, libraries, and museums must not exceed 30% of total occupancy limits, and exercise facilities must not exceed 25% of a total occupancy limit established by the State or local fire marshal. 

The Order replaces an earlier October 29th MDHHS order containing less-restrictive gathering prohibitions, face covering requirements, and reporting protocols for confirmed and probable COVID-19 cases at schools.  As with the earlier October 29th order, non-compliance with the Order is punishable by a fine of up to $1000 for each violation or day that a violation continues. 

On Monday, November 16, 2020 MIOSHA further clarified in a Webinar and Q&A event that it intends to perform random pro-active inspections with an emphasis on office settings.  Upon inspection, the MIOSHA investigator will require companies to provide their written COVID preparedness and response plan which must include an analysis of any positions that perform work in person, and a justification for the in-person work.

The Order also contains an extensive explanation of the statutory authority under which MDHHS is authorized to issue pandemic directives. In the past several weeks a number of lawsuits have been filed alleging that MDHHS orders constitute government overreach – similar to the Governor’s executive orders invalidated by the Michigan Supreme Court in October. In issuing its recent orders, MDHHS is relying on different statutory authority than that relied upon by the Governor for issuing executive orders earlier in the year. Under the Michigan Public Health Code (MCL 333.1291 et. seq.) enacted following the 1918 Spanish Flu Pandemic, MDHHS is statutorily authorized to “prohibit the gathering of people” and “establish procedures” during a pandemic or similar public health emergency. More broadly, under MCL 333.2226(d), MDHHS may “[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers and duties vested by law in the department.” Regardless, it would not be surprising to see litigation filed challenging this exercise of authority by the MDHHS, in light of the Supreme Court’s recently articulated views on delegation of authority.  

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