Breaking news: MDHHS order follows CDC mask guidance, MIOSHA rules still require masks for all - Michigan Retailers Association

On Friday, May 14 Michigan released a revised MDHHS epidemic order that took effect Saturday, May 15 at 9:00 a.m. The order lifted the mask mandate for fully vaccinated individuals indoors and for everyone when outdoors. However, as you’ll see noted below, the MIOSHA rules still require employers to ensure all customers entering businesses (and employees) are wearing face coverings.

While the order remains in place through May 31, the state announced via press release earlier today that it intends to keep an indoor mask mandate through July 1. MRA has been told the MIOSHA rules will be updated to follow the MDHHS order, possibly as soon as early next week and there may be a statement made sooner to reflect that compliance with the new MDHHS epidemic order is sufficient. If/when we see that information it will be sent out to members ASAP.

MAJOR CHANGES IN THE EPIDEMIC ORDER INCLUDE:

• Individuals outdoors will no longer need to wear a mask regardless of vaccination status
• While indoors, fully vaccinated Michiganders will no longer need to wear a mask, but residents who are not vaccinated, or have not completed their vaccinations, must continue to wear a mask or face covering to protect themselves and others
• No changes to social distancing requirements despite the CDC changes

GOOD FAITH EFFORT:

Retailers and business owners are now expected to make a “good faith” effort to ensure unvaccinated individuals continue wearing masks when indoors. As defined in the order a “good faith effort” includes any one of these options:

• Posting a sign notifying people that wearing a mask is required unless a person falls into a specified exception
• Asking patrons not wearing masks whether they fall into a specified exception
• Requiring face masks of all patrons and employees
• Any other policy designed to ensure compliance with the requirement for unvaccinated individuals, or those who have not been fully vaccinated (two weeks after the second/last dose of the vaccine) to wear a face covering when indoors

EXEMPTIONS FROM FACE-COVERING REQUIREMENT IN THE ORDER:

• Are fully vaccinated persons;
• Are younger than 2 years old;
• Cannot medically tolerate a face mask;
• Are eating or drinking while seated in a designated area or at a private residence;
• Are swimming;
• Are receiving a medical or personal care service for which removal of the face mask is necessary;
• Are asked to temporarily remove a face mask for identification purposes;
• Are communicating with someone who is deaf, deafblind, or hard of hearing and whose 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 face mask would seriously interfere in the performance of their public safety responsibilities;
• Are engaging in a religious service;
• Are giving a speech for broadcast or to an audience, provided that the audience is at least 12 feet away from the speaker; or
• Are engaging in an activity that requires removal of a mask not listed in another part of this section, and are in a facility that provides ventilation that meets or exceeds 60 ft³/min of outdoor airflow per person.

NOTE ON MASKS FOR KIDS AGES 2-11:
Kids under 12 are not eligible to receive the vaccine, so retailers may want to be extra vigilant about asking kids aged 2-11 to wear masks since they would not qualify for an exemption. This is obviously going to be contentious if vaccinated parents don’t need masks but kids do. It’s unclear at this point in time if the “good faith effort” covers kids. We hope so, but this hasn’t been confirmed.

IMPORTANT NOTE – MIOSHA WORKPLACE SAFETY RULES STILL REQUIRE ALL CUSTOMERS WEAR MASKS

While the MDHHS epidemic order has been updated to reflect CDC guidance, the order still conflicts with MIOSHA’s emergency rules on workplace safety which include requiring patrons to wear a face covering (unless the patron is unable medically to tolerate one). MRA has repeatedly brought this discrepancy to the administration’s attention and we understand they are working to either update or rescind those provisions. Until those conflicting provisions are rescinded, employers who fail to meet those requirements can receive citations and fines up to $7,000. We are hopeful a statement will be issued to reflect that compliance with the MDHHS epidemic order is sufficient but that has not been released yet.