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On November 15, 2020, the Director of the Michigan Department of Health and Human Services (“MDHHS”) issued an emergency “Gatherings and Mask Order” (the “Order”). The Order imposes new restrictions on residential and non-residential gatherings and closes certain types of businesses, including bars and restaurants for indoor service, entertainment venues, recreational facilities, and other workplaces when work can be done from home. The Order takes effect on November 18, 2020, and is scheduled to expire on December 8, 2020.

Gatherings

For businesses, subject to certain exceptions, the Order prohibits gatherings where two or more persons from more than one household are present in a “shared space.” Exceptions relevant to businesses include:

• Incidental or temporary gatherings such as may frequently occur at exercise facilities, food service establishments, shopping malls, and public pools, except as specifically prohibited elsewhere in the Order;

• Gatherings between an employee and customer for the purpose of receiving services;

• Workplace gatherings that occur consistent with the Emergency Rules issued by MIOSHA on October 14, 2020. These rules generally require employers to create policies prohibiting in-person work to the extent that such work can feasibly be completed remotely and references that a “shared space” includes in-person meetings, restrooms, and hallways;

• Children in a child-care organization or camp setting; and

• Certain gatherings occurring for the purpose of medical treatment, funerals, and residential care facilities.

Despite creating a carve out for incidental and temporary gatherings that may occur at certain businesses, the Order specifically prohibits gatherings at certain entertainment venues and recreational facilities, including places such as arenas, cinemas, theaters, performance and sporting venues, arcades, bowling alleys, skating rinks, and water and trampoline parks, to name a few.

With regard to Bars and Restaurants, the Order prohibits indoor service. However, bars and restaurants may still provide delivery and takeout service and outdoor dining so long as customers are seated no more than 6 to a table and tables are spaced 6 feet apart.

Further restrictions apply to facilities such as Retail Stores, Exercise Facilities, Pools, and Personal Care Services.

• Retail Stores must limit capacity to 30% of normal occupancy and establish lines to regulate entry and checkout that enable patrons to stand 6 feet apart.

• Exercise Facilities must limit capacity to 25% of normal occupancy and have to keep workout stations 12 feet apart.

• Pools must restrict capacity to 25% of normal bather limits.

• Facilities offering Personal Care Services such as hair, nail, tanning, massage, and similar services are only permitted to operate if the services do not involve removal of face masks, are provided by appointment only, and no one gathers in a waiting room.

Masks

In addition to the limitations on gatherings, the Order requires all persons participating in a gathering to wear a face mask. For businesses, this means all employees and patrons must wear a face mask while gathered. Employees or patrons refusing to wear a mask while gathered must be denied entry or service. While the Order lists certain exemptions to the face mask requirements, it is important to note that businesses cannot assume that someone entering their facility is exempt. However, a customer’s verbal representation that they are not wearing a face mask because they fall within a specified exception may be accepted. Certain specified exemptions include that face masks are not required for:

• Children younger than 5;

•  Persons who cannot medically tolerate a face mask;

• Persons eating or drinking while seated, exercising outdoors, or swimming.

While the Order only requires exercise facilities and personal care services to collect customer contact information as a condition to accepting customers, all businesses, schools, and other facilities must provide MDHHS with the names and phone numbers “of individuals with possible COVID-19 exposure” upon request. Information collected from customers must not later be used for marketing purposes and must be treated as confidential.

Last, the Order provides that a violation is a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of up to $200.00, or both. Additionally, violators may face a civil fine of up to $1,000 for each violation, or for each day a violation continues.

This communication is not intended to constitute legal advice. Since the emergency regulations and guidelines continue to evolve and each of your circumstances are unique, we encourage you to reach out to us if you have questions about how this or other COVID-19 related government action may impact your business.