Michigan Department of Health and Human Services Updates Order Regarding Gatherings - Specifically Requires Masks

On October 29, 2020, the Michigan Department of Health and Human Services (“MDHHS”) revised its prior order related to gatherings. The prior order was issued on October 9, 2020, and set to expire on October 30, 2020.

The press release accompanying the October 29 order (the “Order”) makes clear that the intent of the Order is to address “a surge in cases, hospitalizations, and deaths” as a result of the spread of COVID-19.

The Order is effective until rescinded.

We discuss changes the Order made to prior guidance, and then provide a brief discussion about considerations related to face mask exemptions.

Changes Made to Prior Guidance

The Order makes four major changes to prior guidance from MDHHS.

First, the Order transitions away from the terminology used previously and explicitly requires a “face mask” at gatherings. The definition of a “gathering” remains unchanged and 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.” A face mask is defined as “a tightly woven cloth or other multi-layer absorbent material that closely covers an individual's mouth and nose.” The exemptions contained in prior guidance remain in effect.

Second, the Order reduces the number of individuals who may be present at indoor gatherings without fixed seating from 500 persons to 50 persons. The press release explains that the reason for this reduction is based on research that demonstrates “indoor settings are as much as 20 times likelier to drive outbreaks than outdoor settings.”

Third, all athletes in organized sports are required to wear a face mask (except when swimming) or consistently maintain six feet of physical distance (except for occasional and fleeting moments) when training, practicing, or competing. The Order says that adherence to the MDHHS guidance on Additional Measures for Safer Athletic Practice and Play is set forth as an alternate means for compliance with this section. This guidance specifies that “if a cloth face mask cannot be tolerated, a plastic face shield covering the mouth and nose is acceptable.”

Fourth, schools are among the organizations required to provide names and phone numbers of individuals with possible COVID-19 exposure to MDHHS and local health departments to aid in contact tracing and case investigation. This requirement should be implemented by schools in accordance with the safety-exemption requirements in the Family Educational Rights and Privacy Act (“FERPA”) and its implementing regulations, which is the topic of a Clark Hill client alert posted here.

In addition to the changes to prior guidance, the Order places the Traverse City region into Phase 4, so that it is now treated in the same way, and subject to the same requirements as the rest of lower Michigan. The press release states that this is because “cases are now at a high level statewide,” thus mandating that all regions of the State be treated the same.

Face Mask Exemptions

It is important to note that, as discussed above, the exemptions to wearing a face mask have been preserved from prior guidance. Schools should consider such exemptions carefully, in light of the information regarding rapid spread contained in the press release and available from other reputable resources, such as the Centers for Disease Control.  Schools presented with any assertion of an exemption from the face mask requirement would be prudent to examine potential accommodations through the interactive process, similar to any other request for an accommodation under the Americans With Disabilities Act. 

Careful attention should be paid to the recent publication by the United States Department of Education Office for Civil Rights, Questions and Answers for K-12 Public Schools in the Current COVID-19 Environment (September 29, 2020)(the “Federal Guidance”). The Federal Guidance, at footnote 6, cites 28 CFR 35.139(a) for the proposition that the ADA “does not require school districts to permit an individual with a disability to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.” The footnote goes on to note that the analysis is fact-specific and must be undertaken after an individualized assessment of factors, such as the severity of the risk, risk of injury, whether policies may be reasonably modified, and whether the provision of auxiliary aids or services will mitigate the risk. The assessment, importantly, must also be based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence.

The standard above is similar to the standard for workplace accommodation under the ADA analysis of whether accommodating an employee may create a direct threat to co-workers. 

Cases involving face mask exemptions should be carefully considered and discussed with all relevant personnel, such as the director of special education or student services or the director of human resources. Such preparation will empower the individual being asked to make the accommodation with the resources to engage in the interactive process in such a way as to appropriately and legally protect the various interests at stake.

Conclusion

The Order has made several major changes to prior guidance that school districts should consider. Additionally, with the explicit requirement for face masks, it is prudent for school districts to review their policies relative to accommodations for exemptions to the general face mask requirement so that they are best positioned to address any such requests.

If you have any questions about the Order, please contact Joe Urban (jurban@clarkhill.com, 248.988.1829) or another member of Clark Hill’s Education and Municipal Law Group.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.