Updated May 15, 2021: On Friday morning, May 14, Governor Whitmer announced the State would follow the Center for Disease Control and Prevention’s (CDC) new guidance for masks and social distancing for individuals who are fully vaccinated against COVID-19. Subsequently, the Michigan Department of Health and Human Services issued an updated Epidemic Order late Friday evening.
The Epidemic Order, which took affect on Saturday, May 15 at 9 a.m. and remains in effect until May 31 at 11:59 p.m., addresses mask wearing, but not social distancing, and leaves most of the requirements found in prior Epidemic Orders largely intact (e.g., capacity/gathering restrictions for indoor and outdoor settings, curfews for restaurants, contract tracing requirements for certain establishments, etc.).
It’s also important to note that the announcement/order did not address whether changes will be coming to the Michigan Occupational Safety and Health Administration’s (MIOSHA) Emergency Rules, which mandate social distancing and mask wearing requirements related to the workplace and specific industries, including restaurants and bars, retailers, libraries, museums, health care, personal-care services (barbering, cosmetology, tanning, massage, etc.), public accommodations (sports and entertainment facilities), gyms and casinos.
Michigan has long mandated mask wearing and social distancing under its MDHHS Epidemic Orders and the MIOSHA Emergency Rules. Both sets of rules require mask wearing and social distancing for employees, customers, visitors, contractors and the like, regardless of vaccination status (i.e., except as it relates to residential gatherings).
The CDC’s updated guidance recommends “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
The new Epidemic Order tracks what the Governor said in her announcement Friday regarding the new Epidemic Order: “Under the updated MDHHS Gatherings and Mask Order, Michiganders who are outdoors will no longer need to wear a mask regardless of vaccination status. While indoors, fully vaccinated Michiganders will no longer need to wear a mask, but residents who are not vaccinated, or have not completed their vaccinations, must continue to wear a mask or face covering to protect themselves and others. After July 1, the broad indoor mask mandate will expire.”
As it relates to mask wearing, the new Epidemic Order creates various exemptions to the mask requirements found elsewhere in the Order:
- The requirement to wear a face mask at indoor gatherings does not apply to individuals who:
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- Are fully vaccinated persons;
- Are younger than 2 years old;
- Cannot medically tolerate a face mask;
- Are eating or drinking while seated in a designated area or at a private residence;
- Are swimming;
- Are receiving a medical or personal care service for which removal of the face mask is necessary;
- Are asked to temporarily remove a face mask for identification purposes;
- Are communicating with someone who is deaf, deafblind, or hard of hearing and whose ability to see the mouth is essential to communication;
- Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a face mask would seriously interfere in the performance of their public safety responsibilities;
- Are engaging in a religious service;
- Are giving a speech for broadcast or to an audience, provided that the audience is at least 12 feet away from the speaker; or
- Are engaging in an activity that requires removal of a mask not listed in another part of this section, and are in a facility that provides ventilation that meets or exceeds 60 ft3/min of outdoor airflow per person.
In terms of verification of vaccination status, the Order says (emphasis added): “A person responsible for an establishment, or an agent of such person, must prohibit gatherings of any kind at their establishment unless the person makes a good faith effort to ensure that all persons at their establishment (including employees) comply with” the indoor face mask requirement. For purposes of this section, a ‘good faith effort’ may include any of the following: posting a sign notifying people that wearing a mask is required unless a person falls into a specified exception; asking patrons not wearing masks whether they fall into a specified exception; requiring face masks of all patrons and employees; or any other policy designed to ensure compliance with” the indoor face mask requirement.”
It is important to note the new MDHHS Epidemic Order only matches up with only half of the new CDC guidance (i.e., addresses face masks but not social distancing or the 7/1 language for non-vaccinated individuals). The Order also conflicts with the MIOSHA Emergency Rules that all employers must follow. Those rules require businesses to require face coverings for employees as well as customers, visitors and contractors in many settings.
Without corresponding changes to the MIOSHA rules (which are said to be coming), little seems to have changed as it relates to the workplace, especially those businesses open to the public. In the short-term, this is expected to lead to confusion and even chaos for the business community.
Because the MISOHA Emergency Rules remain unchanged for now, it is advised that employers continue to follow the requirements found in those rules. This being said, it is doubtful that MIOSHA will be enforcing the mask mandate while the corresponding updates are being considered, especially in customer-facing businesses. Unfortunately, the new Epidemic Order and MIOSHA Rules put businesses in the difficult position of having to comply with BOTH MIOSHA Rules and the Epidemic Order (which are now conflicting).
Furthermore, questions still remain about how this meshes with the Governor’s “Vacc to Normal” plan, which ties the easing of restrictions to vaccination plans, and how/whether it impacts MIOSHA’s plans to move forward with PERMANENT COVID-19 workplace safety rules.
This is getting more and more confusing by the day, and we are encouraging the administration to consider lifting all of these restrictions, including capacity restrictions, and rescind and withdraw the MIOSHA Emergency and (proposed) Permanent Rules.
Please contact Wendy Block with any questions at wblock@michamber.com.
Member-Only Event: Thursday, May 20 at 9 a.m.
Update on MIOSHA’S Effort to Push Indefinite Workplace Safety Rules
Join us via Zoom on Thursday, May 20 at 9 a.m. for a member-only update to discuss what’s on the table, what it means for you, your business and your employees, how they mesh with Governor Whitmer’s “Vacc to Normal” plan and how you can make your voice heard in the rulemaking process.