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July 30, 2020

State of Michigan Slows Down Reopening

On July 29, 2020, Governor Gretchen Whitmer issued Executive Order 2020‑160 (Amended Safe Start Order) amending Michigan’s Safe Start Plan and limiting indoor gatherings statewide to 10 people or less and, across most of the state, outdoor gatherings are limited to 100 people. Governor Whitmer also issued Executive Order 2020‑161 (Amended Safeguards Order) amending the safeguards to protect Michigan workers and including provisions for the operation of casinos. These executive orders are the latest in a series of executive orders issued by Governor Whitmer responding to the novel coronavirus, COVID‑19.
 
The Amended Safe Start Order rescinds Executive Orders (i) 2020‑110 (Temporary restrictions on certain events, gatherings and businesses); (ii) 2020-115 (Supplemental Reopen Order); (iii) 2020‑120 (Returning overnight camps to operation); (iv) 2010‑113 (Enhanced authorization of remote means for carrying out state administrative procedures); and (v) 2020‑143 (Closing indoor service at bars) (collectively, Prior Orders) and consolidates the requirements of those Prior Orders in the Amended Safe Start Order. 
 
There are a number of minor changes from the requirements of Executive Order 2020‑145 (Prior Safeguards Order) in the Amended Safeguards Order. Substantively, the Amended Safeguards Order is very similar to the Prior Safeguards Order. The Amended Safeguards Order does include requirements for casinos that are allowed to open on August 5, 2020.
 
Masks are still required under Executive Order 2020‑153 (Revised Mask Order). Under the Amended Safe Start Order any individual who leaves their home or place of residence must follow social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet away from people who do not live in the individual’s household, to the extent feasible under the circumstances, and following the rules described in the Revised Mask Order.
 
SUMMARY OF MICHIGAN’S REOPENING
 
Remote Work Must Be Performed Remotely

Updated on 8/5/20
Under Governor Gretchen Whitmer’s Executive Order 2020-160, any work that is capable of being performed remotely (i.e. without the worker leaving his or her home or place of residence) must be performed remotely. On August 5, 2020, Governor Whitmer issued Executive Order 2020-162. Governor Whitmer amended Executive Order 2020-160, to clarify that the “must be performed remotely” requirement does not apply to Regions 6 and 8. In Regions 6 and 8, work that was capable of being performed remotely should be performed remotely. 
 
The Amended Safe Start Order also requires that any business that requires its employees to leave their home or place or residence for work must follow the rules on workplace safeguards in Amended Safeguards Order. 
 
Permitted Social Gatherings
 
As noted above, a social gathering or organized event among persons not part of the same household is permitted, but only to the extent that:
 
  • The gathering or event is designed to ensure that persons not part of the same household maintain six feet of distance from one another.
  • Persons not part of the same household maintain six feet of distance from one another.
  • If it is indoors, the gathering or event does not exceed 10 people.
  • If it is outdoors, the gathering or event does not exceed 100 people.

In just Regions 6 and 8, an outdoor social gathering or organized event among persons not part of the same household is permitted, but only to the extent that:
 
  • The gathering or event is designed to ensure that persons not part of the same household maintain six feet of distance from one another.
  • Persons not part of the same household maintain six feet of distance from one another.
  • It does not exceed 250 people.
 
These restrictions do not apply to incidental gatherings of persons in a shared space, including an airport, bus station, factory floor, restaurant, shopping mall, public pool or workplace. The 10-person indoor limitation does not apply to polling places. 
 
Mask Required!
 
The broader face covering requirement under the Amended Safeguards Order is still supplemented by the Revised Mask Order which requires any individual who leaves their home or place of residence to wear a face covering over their nose and mouth:
 
  • When in any indoor public space.
  • When outdoors and unable to consistently maintain a distance of six feet or more from individuals who are not members of their household.
  • When waiting for or riding on public transportation, while in a taxi or ride-sharing vehicle, or when using a private car service as a means of hired transportation.

Although a face covering is strongly encouraged even for individuals not required to wear one, the requirement to wear a face covering does not apply to individuals who:
 
  • Are younger than five years old (and, per guidance from the Centers for Disease Control and Prevention, children under the age of two should not wear a mask).
  • Cannot medically tolerate a face covering.
  • Are eating or drinking while seated at a food service establishment.
  • Are exercising when wearing a face covering would interfere with the activity.
  • Are receiving a service for which temporary removal of the face covering is necessary.
  • Are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes.
  • Are communicating with someone who is deaf, deafblind, or hard of hearing and where the ability to see the mouth is essential to communication.
  • Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters or emergency medical personnel, and where wearing a mask would seriously interfere in the performance of their public safety responsibilities.
  • Are officiating at a religious service.
  • Are at a polling place for purposes of voting in an election.
  • Are giving a speech for broadcast or to an audience, provided that the audience is at least six feet away from the speaker.

The Revised Mask Order requires that any business, government office or operation open to the public may not provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by the Revised Mask Order.
 
A business may not assume that someone who enters the business without a face covering falls into one of the exceptions noted above, including the exception for individuals who cannot medically tolerate a face covering. A business may, however, accept a customer’s verbal representation that they are not wearing a face covering because they fall within a specified exception.
 
Businesses that are open to the public must post signs at entrance(s) instructing customers of their legal obligation to wear a face covering while inside. A violation of this Revised Mask Order by a business may result in the temporary suspension of the business’s license to operate (including but not limited to a liquor license).
 
Businesses and Activities to Remain Closed
 
Under the Amended Safe Start Order, except as noted below, the following places are to remain closed to entry, use and occupancy by members of the public:
 
  • Indoor theaters, cinemas and performance venues.
  • Indoor gymnasiums, fitness centers, recreation centers, sports facilities, exercise facilities, exercise studios and the like.
  • Millionaire Parties licensed by the Michigan Gaming Control Board.
  • Until August 5, 2020 at 10:00 a.m., casinos licensed by the Michigan Gaming Control Board and racetracks licensed by the Michigan Gaming Control Board. After such time, such establishments may operate, subject to the rules on workplace safeguards described in the Amended Safeguards Order.
  • Indoor services or facilities or outdoor services or facilities involving close contact of persons for amusement or other recreational or entertainment purposes such as amusement parks, arcades, bingo halls, bowling alleys, indoor climbing facilities, indoor dance areas, skating rinks, trampoline parks and other similar recreational or entertainment facilities.

The following places are not included in the above restrictions:
 
  • Outdoor fitness classes, athletic practices, training sessions or games, provided that coaches, spectators and participants not from the same household maintain six feet of distance from one another at all times during such activities, and that equipment and supplies are shared to the minimum extent possible and are subject to frequent and thorough disinfection and cleaning.
  • Services necessary for medical treatment as determined by a licensed medical provider.
  • Health care facilities, residential care facilities, congregate care facilities and juvenile justice facilities.
  • Crisis shelters or similar institutions.
  • Food courts inside the secured zones of airports.
  • Employees, contractors, vendors, or suppliers who enter, use or occupy the places described above in their professional capacity. 

Activities Permitted only in Regions 6 and 8
 
An arcade, bowling alley, cinema, climbing facility, convention center, performance space, meeting hall, night club, sports arena, theater or similar venue may, if it is indoors, be open to spectators or patrons, but only to the extent that it:
 
  • Enables persons not part of the same household to maintain six feet of distance from one another at all times while in the venue.
  • Limits the number of people in the venue to 25% of its maximum capacity or to 250, whichever is smaller. For purposes of this calculation, each separate auditorium or screening room is a separate venue.

A concert space, race track, sports arena, stadium or similar venue may, if it is outdoors, be open to spectators or patrons, but only to the extent that it:
 
  • Enables persons not part of the same household to maintain six feet of distance from one another at all times while in the venue.
  • Limits the number of people in the venue to 25% of its maximum capacity or to 500, whichever is smaller.

Professional Sports
 
Professional sports leagues and teams, including professional athletes engaged in individual sports, may resume operations, provided that:
 
  • No live audiences are allowed, except for staff of the facility at which a sporting event is held and media personnel reporting on, filming or otherwise documenting the sporting event.
  • The activities are conducted pursuant to a COVID‑19 safety plan that is consistent with any guidance from the Centers for Disease Control and Prevention and the Michigan Department of Health and Human Services.
  • Participants maintain six feet of distance from one another to the extent compatible with the sporting activity.

Restaurants and Bars
 
Restaurants, food courts, cafes, coffeehouses and like places may be open to the public subject to the capacity constraints and workplace standards described in the Amended Safeguards Order including the provisions limiting capacity to 50% of normal seating and requiring six feet of separation between parties or groups at different tables or bar tops.

Any food service establishment that serves alcoholic beverages for on-premises consumption must, both indoors and outdoors:
 
  • Require patrons to wear a face covering except when seated at their table or bar top (unless the patron is unable medically to tolerate a face covering).
  • Require patrons to remain seated at their tables or bar tops, except to enter or exit the premises, order food or use the restroom.
  • Sell alcoholic beverages only via table service, not via orders at the bar except to patrons seated at the bar.
  • Prohibit access to common areas in which people can congregate, dance or otherwise mingle.

Any food service establishment (statewide) that holds an on-premises retailer license to sell alcoholic beverages must close for indoor service if the establishment earns more than 70% of the establishment’s gross receipts from sales of alcoholic beverages. If a bar is closed for indoor service, the bar must prohibit patrons from entering the establishment except to walk through it in order to access the outdoor area, to leave the establishment or to use the restroom.
 
The Amended Safe Start Order does not require patrons to remain seated when ordering such beverages for off-premises consumption and does not prohibit the sale of alcoholic beverages for off-premises consumption to patrons who are not seated at a table.
 
Outdoor Parks and Pools
 
Unless otherwise prohibited by local regulation, outdoor parks and recreational facilities may be open, provided that they make any reasonable modifications necessary to enable employees and patrons not part of the same household to maintain six feet of distance from one another, and provided that areas in which social distancing cannot be maintained be closed, subject to guidance issued by the Michigan Department of Health and Human Services.
 
Unless otherwise prohibited by local regulation, public swimming pools may be open, subject to guidance issued by the Department of Health and Human Services, provided that:
 
  • If the pool is outdoors, capacity is limited to 50% of the bather capacity limits.
  • If the pool is indoors and located in Regions 6 or 8, capacity is limited to 25% of the bather capacity limits.
  • If the pool is indoors and located outside of Regions 6 or 8, the pool may only be open for infant and child drowning prevention classes, and capacity is limited to 25% of the bather capacity limits.
  • For all pools, capacity on the pool deck is limited to ensure that persons not part of the same household maintain six feet of distance from one another.
 
You can find the executive orders that are currently in effect here. If you have any questions about how the Amended Safeguards Order impacts your business, please contact your Warner Labor and Employment lawyer or any member of the Warner Labor and Employment Practice Group. Warner has organized a cross-disciplinary legal team to help you navigate through the Amended Safe Start Order. If you have any questions or concerns related to the Amended Safe Start Order or any previously issued stay-at-home order, please reach out to your Warner client manager or Michael Brady, Troy Cumings, Amanda Fielder, Matthew Johnson or Linda Paullin-Hebden.  

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