In light of the Michigan Supreme Court’s October 2, 2020 order nullifying over 100 of the governor’s COVID-19 executive orders, the Michigan Department of Health and Human Services (MDHHS) continues to issue health-related orders to protect Michigan residents. On October 5, 2020, MDHHS issued an order requiring face coverings in most public settings and limiting the number of individuals who could attend certain types of “gatherings.” On October 6, the department issued three orders relating to mandatory reporting of COVID cases in school settings, and restrictions for congregate care, residential care, and juvenile justice-related businesses. Most recently, on October 9, the MDHHS issued a second order on face coverings and gatherings, continuing to prove that it intends to issue emergency health orders in line with what Michigan businesses previously saw under the governor’s executive orders.

The October 9 order rescinds the October 5 order, expands protections, and provides needed clarification. For example, the order added specific definitions, including the following:

• Close contact means being within six feet of an individual for 15 minutes or longer.
• Face covering means a covering that covers at least the nose and mouth.
• Employee means that term as defined in section 2 of the Improved Workforce Opportunity Wage Act, 2018 PA 337, as amended, MCL 408.932, and also includes independent contractors.
• Gathering means any occurrence where two or more people from more than one household are present in a shared space.
• Symptoms of COVID-19 include fever, an uncontrolled cough, new onset of shortness of breath, or at least two of the following not explained by a known medical or physical condition: loss of taste or smell, muscle aches, sore throat, severe headache, diarrhea, vomiting, or abdominal pain.

Although the order keeps in place the same attendance limitations on indoor and outdoor gatherings at private, public, and other venues, it adds specific capacity limitations as well, including:

• A gathering at a retail store, library, or museum may not exceed 50% of total occupancy limit established by the state fire marshal or a local fire marshal (except in Region 6).¹
• Gatherings at recreational sports and exercise facilities, such as gymnasiums, fitness centers, recreation centers, exercise studios, bowling centers, roller rinks, ice rinks, and trampoline parks are prohibited if they exceed 25% of the total occupancy limits established by the state fire marshal or a local fire marshal, or if there is less than six feet of distance between each workout station.
• Gatherings at non-tribal casinos may not exceed 15% of total occupancy limits established by the state fire marshal or a local fire marshal.

Likewise, gatherings in waiting rooms at all businesses, including outpatient healthcare facilities, veterinary clinics, and personal care services, are prohibited unless the facility can maintain six feet of distance between patrons. The same is true for gatherings at professional sporting and entertainment venue, stadiums, and theaters.

Critical for businesses, the order implements protections for workers found in the governor’s executive orders. Face coverings are mandatory at all businesses with indoor operations, with the same limited exceptions in place, and “gatherings of employees in the workplace are prohibited” if:

• The gathering is not strictly necessary to perform job duties, provided that, where gatherings are necessary, employees must maintain six feet of distance from one another where practicable;
• Employees not otherwise required to wear face coverings cannot maintain six feet of distance from others; and
• Employees not otherwise required to wear face coverings occupy the same indoor shared space, such as conference rooms, restrooms, and hallways.

Food service establishments are also subject to specific requirements, including:

• Prohibiting gatherings in indoor common areas where people can congregate, dance, or otherwise mingle;
• Maintaining six feet between parties;
• Limiting seating capacity to 50%; and
• Deep cleaning consistent with Food and Drug Administration and CDC guidance, in the event an employee is confirmed positive for COVID-19 or shows symptoms of COVID-19 while at work.

Additionally, employees who are subject to a recommendation to isolate or quarantine consistent with CDC guidance, have been instructed to remain home by a health or public health professional, or are awaiting a COVID-19 test or the results of a COVID-19 test after having symptoms of COVID-19, must not be present in a gathering at work until the employee is advised by a health or public health professional that they may return to work, or the following conditions are met:

1. 24 hours have passed since the resolution of fever without the use of fever-reducing medications; and
2. 10 days have passed since their symptoms first appeared or since they were administered a COVID-19 test that yielded the positive result, if applicable; and
3. Other symptoms have improved.

With regard to screenings, business that have in-person operations must conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms of COVID-19 and suspected or confirmed exposure to people with possible COVID-19.

Businesses open to the public must post signs at entrances instructing customers of their legal obligation to wear a face covering while inside the store and informing customers not to enter if they are or have recently been sick.

Similarly, on Friday, October 8, 2020, Detroit Mayor Mike Duggan announced that the City is in the process of adopting all of Governor Whitmer’s COVID-19 orders within the next two weeks, and noted, “what we are doing is guaranteeing the Detroiters will have the protection of [those] orders no matter what happens in the courts.”²

The MDDHS also produced an infographic and a fact sheet explaining some of the basic requirements of its orders.

The order is effective immediately and remains so through October 30, 2020. The order allows local health departments to enforce its terms. Violations are punishable by a civil fine of up to $1,000 for each violation or day a violation continues.