On July 10, 2020, Governor Whitmer issued an executive order expanding the scope of and increasing enforcement around the requirement of 1.) individuals to wear masks or face coverings when in indoor public places and outdoors when distancing is not possible and 2.) businesses to enforce face mask usage on the general public.
Under this order, businesses will for the first time face penalties for the noncompliant behavior of their customers. This executive order places the employees of businesses into the primary law enforcement role of gaining compliance with rules on the general public when the general public visits the facility of a business.
The purpose of this guide is to help small businesses understand their responsibilities under E.O. 2020-153 and develop a policy to ensure compliance and safety of staff.
The overarching purpose of the policy is to gain higher compliance with the usage of facemasks by the general public. The main business regulation is found in section 3. It is short, but expansive. It reads:
To protect workers, shoppers, and the community, no business that is open to the public may provide service to a customer or allow a customer to enter its premises, unless the customer is wearing a face covering as required by this order.
a. 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. The Michigan Department of Labor and Economic Opportunity may, in its discretion, require such businesses to post signs developed and made available by the Department, or conforming to requirements established by the Department.
b. A department or agency that learns that a licensee is in violation of this section will consider whether the public health, safety or welfare requires summary, temporary suspension of the business’s license to operate (including but not limited to a liquor license) under section 92 of the Administrative Procedures Act of 1969, 1969 PA 306, as amended, MCL 24.292(2).
The use of the words “to protect workers, shoppers, and the general public” is meant to establish the widest possible scope and allow for an expansive potential range of enforcement entities. Coupled with the penalties found in section 3(b) and 8, elements of this order could potentially fall under the jurisdiction of MiOSHA, various state licensing bureaus, Michigan State Police, county/local police, the Attorney General, and local public health departments.
The two main responsibilities assigned to businesses are established as prohibitions connected to unmasked individuals.
- No business that is open to the public may provide service to a customer unless the customer is wearing a face covering as required by E.O. 2020-153
- No business that is open to the public may allow a customer to enter its premises unless the customer is wearing a face covering as required by E.O. 2020-153
The Executive Order does not give any direct guidance on recommended procedures, however, SBAM staff has inquired of and had multiple conversations with state officials regarding compliance so that we may provide additional guidance to small businesses. Here’s what we know and recommend based on our research so far:
Businesses open to the public:
- Must be compliant with this Executive Order by 12:01 am July 13, 2020.
- Should establish written a policy outlining procedures for meeting the requirements of this Executive Order and train staff on the elements of its implementation.
- Must post signs at each entrance available to the public informing them of their legal requirement to wear a face covering while inside.
- Are NOT allowed to admit a customer into the premises if they are not wearing a face covering, unless they are medically unable.
- Are expected to verbally notify non-compliant customers of the requirement to wear a face covering and further ask them to leave if the customer refuses to comply.
- Are NOT allowed to serve a customer who is not wearing a face covering (including at checkout), unless they are medically unable.
- Are discouraged from any sort of physical management of or physical altercation with customers.
- Are encouraged to call the police if a customer refuses to leave the premises upon being asked.
- Are expected to keep employees and other customers away from the noncompliant occupant, mitigating the risk through distancing.
(note: while the Executive Order references “business” as the regulated entity, the requirements should be more broadly interpreted to apply to any entity with employees, which would include nonprofits.)
If a customer indicates that they have a condition preventing them from wearing a mask, the Department of Civil Rights provided three response options that are compliant with the Mask Executive Order, the Americans With Disabilities Act (ADA) and the Persons with Disabilities Civil Rights Act (PWDCRA).
- Provide anyone who does not wear a face covering, for whatever reason, an alternative to entering without a face covering (examples might include having staff shop for them, providing carryout service, etc.)
- Engage in a dialogue with each individual who is not wearing a face covering to determine if, due to a disability, the business can provide a reasonable accommodation/modification of the policy for this individual (this might include allowing a face shield, or any of the examples above)
- Allow entry to anyone who indicates they cannot medically tolerate a face covering, while excluding others whose reasons for not wearing one are not covered in the EO or are not covered under the ADA or PWDCRA.
There are several exceptions to the face covering requirement noted in section 2 of the Executive Order including those who:
- Are younger than five years old.
- Cannot medically tolerate a face covering. There is no documentation or proof required of the customer. You should establish a policy regarding what, if anything, you wish to require outside the verbal notification of a customer. Keep in mind that the ADA does not allow a business to require an individual to disclose their disability.
- Are eating while seated at a food service establishment. This exception does not exempt customers from wearing a face covering when not seated at their table, such as when using the restroom or walking to and from their table.
- Are exercising when wearing a face covering would interfere in the activity. Currently, fitness facilities are only allowed to be open in regions 6 and 8.
- Are receiving a service for which temporary removal of the face covering is necessary to perform the service. For example, receiving a facial or dental services.
- Are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes. For example, a bank may require you to reveal your face for the purposes of identification.
- Are communicating with someone who is hearing impaired or otherwise disabled 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.
- Are officiating at a religious service.
- Are giving a speech for broadcast or an audience.
Willful violations of this order are subject to a $500 fine and a misdemeanor consistent with MCL 10.33 and MCL 30.405(3). Additionally, those found in violation are potentially subject to suspension of any applicable business license (including but not limited to a liquor license).
