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MDHHS Issues Gathering and Face Mask Order

By James "Jay" J. Fleming / Nov 16, 2020

On Nov. 15, the Michigan Department of Health and Human Services “MDHHS” issued an Order which places updated restrictions on gatherings and the use of face masks and suspends certain in-person learning.

The Emergency Order under MCL 333.2253-Gatherings and Face Mask Order (the “Order”) is effective for three weeks starting Nov. 18 and is set to expire on Dec. 8. MDHHS maintains that this Order was issued to address the growing concern regarding the rising number of positive COVID-19 cases. While it aims to target indoor social gatherings and other group activities, it also has a significant impact on high schools, colleges, and universities throughout Michigan.

All gatherings for all in-person learning, sports, and extracurricular activities for high schools (grades 9-12) are suspended, with the exception of in-person instruction of students who are English Language Learners or participants in special education services. “Gatherings” is defined as “any occurrence, either indoor or outdoor, where two or more persons from more than one household are present in a shared space.”

Impact on Schools and Childcare

This applies to public, nonpublic, and boarding schools throughout Michigan. According to Chief Medical Executive Dr. Joneigh Khaldun, more than half of COVID-19 outbreaks identified by the State were linked to high school students. Two-thirds of the cases in those outbreaks were among high school students.

In-person learning may continue for students in grades pre-kindergarten through 8 subject to local health department and individual school district decisions. However, like grades 9-12, gatherings for sports and extracurricular activities are suspended for grades pre-kindergarten through 8.

All schools may continue to gather to provide services to students in need, including food distribution, access to internet connectivity, physical and mental health care services, and child care.

Colleges and universities are also prohibited from holding in-person classes, extracurricular activities, or other events, but may continue to host outdoor gatherings, so long as: (A) 25 or fewer persons are gathered at a venue without fixed seating, and attendance is limited to 20 persons per 1,000 square feet, including within any distinct area within the event space; or (B) 25 or fewer persons are gathered at a venue with fixed seating, and attendance is limited to 20% of seating capacity of the venue. So long as these limitations are followed, college sports are allowed.

Impact on Workplaces

The Order also specifies that workplace gatherings may occur so long as they are consistent with the Emergency Rules issued by MIOSHA on Oct. 14. Those Rules, among other things, mandate that an “employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” The Emergency Rules do not define “feasibly.” Employers, including schools/colleges/universities, should carefully analyze what work cannot be completed remotely.

Impact on Public Meetings

Based on the new definition of gatherings, in-person public meetings will not be permitted starting Wednesday, Nov. 18. While there are several exceptions to this rule, indoor gatherings are prohibited at non-residential venues. A public meeting is not an exception under the Order. Public bodies should strongly consider conducting public meetings virtually from now and until at least Dec. 8, when the Order expires. 

Mask Mandate and Safety Precautions

MIOSHA's Oct. 14 Rule also calls for frequent and thorough hand washing, establishing procedures for an increase in workplace cleaning and disinfection, a prohibition on employees sharing workplace equipment, and a requirement that the employer shall prohibit workers who are sick to stay home from work or to work in an isolated location. You can read those Rules here

The November 15 MDHHS Order clarifies that all persons participating in gatherings are required to wear a face mask and that a person responsible for a business, store, office, school, or organized event must require individuals to wear a face mask and deny entry or service to all persons who refuse to wear a face mask. The person responsible for these gatherings may not assume that someone who enters without a mask falls within an exception, such as having a medical condition that would preclude an individual from wearing a mask. Child care organizations are required to adhere to face mask mandates based on the child’s age.

The Order mandates that upon request, schools and other facilities must provide names and phone numbers of individuals with possible COVID-19 exposure to the MDHHS and local health departments to aid in contact efforts.

If you have any questions about this Order or its impact, please contact Jay Fleming or any member of Clark Hill’s Education Law Group.