Governor Whitmer and the Department of Health Announce New COVID-19 Restrictions and Prohibitions
Yesterday evening, at 6:00 pm on November 15, 2020, Governor Whitmer announced new COVID-19 restrictions and mandates that will affect businesses, schools, and families. Citing a new uptick in confirmed cases and deaths due to the Coronavirus, the Emergency Order—referred to as “Pause to Save Lives”—will be in place for three weeks, going into effect on November 18, 2020 at 12:01 am, and remaining in effect until December 8, 2020 at 11:59 pm. And because the Michigan Supreme Court has ruled that Governor Whitmer exceeded her authority with her prior Executive Orders, this mandate comes in the way of an Emergency Order under Michigan’s Public Health Code, MCL § 333.2253, and is technically issued by the Director of the Michigan Department of Health and Human Services. The Emergency Order can be found here.
The Emergency Order is not an across-the-board stay-at-home order like the one issued in the spring. It does, however, mandate various restrictions, especially as to gatherings. As for employers and places of business, there is no general prohibition on working outside the home in this Emergency Order itself, but it does incorporate the Michigan Occupational Safety and Health Administration’s (MIOSHA’s) rules issued on October 14, 2020 (here), which state that employers should “prohibit in-person work for employees to the extent that their work activities can feasibly be completed remotely.” This leaves unanswered what it means to be “feasibly” able to do so remotely, or whether the inability to fully perform one’s work but only partially able to do so constitutes being “feasibly completed.”
The new Emergency Order expressly prohibits attendance or gathering at the following for at least the next three weeks:
- High School and College in-person learning,
- Indoor dining at restaurants and bars,
- Organized sports, except those that can meet rigorous testing requirements (likely limited to professional and some college sports),
- Theaters, movie theaters, stadiums, and arenas,
- Bowling alleys, ice skating rinks, or indoor water parks,
- Bingo halls, casinos, and arcades, or
- Group fitness classes.
The new Emergency Order does NOT, however, prohibit attendance or gathering at the following, which remain open:
- Small outdoor gatherings (limited to 25 people),
- Indoor gatherings (limited to two households),
- Gatherings for religious worship,
- Preschool through 8th grade schools (though local school districts can choose whether to remain open or to close),
- Manufacturing, construction, and other work that is impossible to do remotely,
- Public transit,
- Hair salons, barber shops, and other personal services (so long as a mask is worn and does not have to come off),
- Gyms and pools (for individual exercise, but not for group practices),
- Restaurants and bars (for outdoor dining, takeout, and delivery),
- Professional sports (without spectators),
- Parks and outdoor recreation,
- Funerals (attended by up to 25 people), and
- Health care related matters.
Masks are still mandated as they were previously, though there continue to be exceptions for those who cannot medically tolerate them, for attending or participating in religious services, and other limited occasions. There are also mandates and rules for businesses to maintain contact information for contact tracing in the case of an infection.
The Emergency Order states that it will be enforced by law enforcement officers. Violation of the order is a misdemeanor punishable by imprisonment for not more than 6 months, or a fine of not more than $200.00, or both.
This Emergency Order is very new and, as always, questions will be answered and details will be worked out in the coming days and weeks. Butzel Long’s Executive Order team will continue to monitor the situation. Should you have any questions as to how this Emergency Order may affect you or your business, contact us today.
Justin G. Klimko