Michigan’s Executive Order 2020-153 Strengthens Mask Requirements, Prohibits Businesses from Assuming Exemption

On Friday July 17, 2020, Governor Gretchen Whitmer rescinded Executive 2020-147, issuing revised face covering requirements in Executive Order 2020-153.

The general requirements set forth by the Order remain unchanged – face coverings must be worn in indoor places of public accommodation throughout the state and when social distance cannot be consistently maintained. Indoor places of accommodation are required to deny entry or service to anyone not wearing a face covering, and are required to inform patrons of their obligation to wear a mask.

Unlike 2020-147, the revised Order 2020-153 clarifies that businesses may not assume that an unmasked customer cannot medically tolerate a face covering, though they may accept a customer’s verbal representation to that effect.

Alongside this clarification, the Michigan Department of Civil Rights cautioned businesses that they must also ensure adherence to state and federal law when enforcing these revised rules. This includes compliance with the Americans with Disabilities Act (“ADA”), as well as Michigan’s Persons with Disabilities Civil Rights Act (“PWDCRA”). While businesses should consult legal counsel when developing policies, the Department stated that compliance could generally be achieved by doing one of three things:

Provide anyone who does not wear a face covering, for whatever reason, an alternative to entering without a face covering (examples might include having staff shop for them, providing carryout service, etc.);
Engage in a dialogue with each individual who is not wearing a face covering to determine if, due to a disability, the business can provide a reasonable accommodation/modification of the policy for this individual (this might include allowing a face shield, or any of the examples above); or
Allow entry to anyone who indicates they cannot medically tolerate a face covering, while excluding others whose reasons for not wearing one are not covered in the EO or are not covered under the ADA or PWDCRA.

The revisions in Executive Order 2020-153 also clarify that wearing a mask at a polling place for purposes of voting in an election is not required, though wearing a mask to protect yourself and others is strongly encouraged. Additionally, the Order explicitly requires public safety officers to wear a face covering unless doing so would seriously interfere with the performance of their responsibilities.

Masks are not required for those younger than five years old, for those who are unable to medically tolerate the wearing of a mask, or when eating, drinking, exercising and when temporary removal of the mask is essential to perform a service. The Order also requires face coverings to be worn (i) outdoors whenever an individual in unable to consistently maintain a distance of six feet or more from individuals who are not members of their household, (ii) when waiting for or riding on public transportation, or (iii) while in a taxi or ride-sharing vehicle or when using a private car service.

Businesses found to be in violation of the Order are subject to operating license suspension or revocation under Section 92 of the Administrative Procedures Act of 1969. (1969 PA 306, as amended, MCL 24.292(2)). Willful noncompliance of the Order constitutes a misdemeanor, and imposes a fine of up to $500 for each violation.

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