On Friday July 10, Governor Whitmer tightened prior rules for wearing of masks, or “face covers.” In summary, the Order requires customers who enter any “indoor public space” of a business to wear a mask, and obligates all businesses that make such “indoor public space” available to require their customers to wear masks. However, the key term, “indoor public space” is not defined in the Order or prior orders. Previously announced minor exceptions for mask use, such as removing coverings while seated in a restaurant, or exempting persons who cannot medically tolerate wearing a mask, are continued. EO 2020-147 applies state-wide, including Regions 6 and 8, the Traverse City area and the Upper Peninsula.
The Provisions of the Executive Order
Section 1 of EO 2020-147 applies to all persons moving in public – outside of their home or residence — within Michigan. The rule states:
“1. Any individual who leaves their home or place of residence must wear a face covering over their nose and mouth:
a. When in any indoor public space.
b. When outdoors and unable to consistently maintain a distance of six feet or more from individuals who are not members of their household; and
c. When waiting for or riding on public transportation, while in a taxi or ridesharing vehicle, or when using a private car service as a means of hired transportation.”
Section 2 of 2020-147 establishes health, age, and business service exceptions to the rule set out in Section 1.
Section 3 of 2020-147 applies to every business in Michigan that is “open to the public,” and makes those businesses responsible to require mask use by visiting customers. Section 3 provides:
“3. To protect workers, shoppers, and the community, no business that is open to the public may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering as required by this order.”
Interpretation and Application
As noted, the phrase “indoor public space” used in Section 1 does not appear to be defined. However, the Governor has spoken repeatedly and publicly about requiring mask use in retail and, especially, food establishment and bar settings. Also, Section 3 references “shoppers” and another provision of Section 3, not quoted in this Article, refers to liquor licensees. Considering the entire Order in the context of its issuance, it appears that EO 2020-147 is intended to apply to situations where public presence within the “indoor … premises” of the business is routine or, at least, reasonably anticipated.
Further, Executive Order 147 does not lessen any preexisting face covering requirements, for example, industry-specific rules for non-public operations involving manufacturing or, apparently, office work where no general public access is permitted for the purpose of operating the business.
Examples of businesses that must require mask use by customers present to receive otherwise permissible services include:
- Food service establishments (currently limited by EO 2020-143 to those earning 30% or less of their gross receipts from alcoholic beverages);
- Grocery, clothing, retail and other stores or similar establishments, including shopping mall common areas;
- Publicly used common areas of otherwise private buildings, for example, commercial or apartment building lobbies, restroom areas; and,
- Public or not-for-profit facilities.
Examples of businesses likely are responsible to require mask use include:
- Offices or areas of offices where members of the public are present, for example, reception or conference rooms made available to customers in the course of the ordinary business of the enterprise.
- Waiting rooms (health care facilities are subject to specific rules).
This alert serves as a general summary, and does not constitute legal guidance. All statements made in this article should be verified by counsel retained specifically for that purpose. Please contact us with any specific questions.
We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.
Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or firstname.lastname@example.org.