On Monday, October 5, 2020, Director Robert Gordon of the Michigan Department of Health and Human Services (the "Department") issued an emergency order that places restrictions on gathering sizes within the state and imposes face covering requirements in various situations (the "Order"). The Order, which became effective immediately and remains in place through October 30, 2020, was issued in response to the October 2 opinion of the Michigan Supreme Court, limiting Governor Whitmer's authority to issue or re-issue executive orders in response to the COVID-19 pandemic. As we anticipated, the Governor's executive orders are being re-packaged and re-issued by various governmental bodies asserting authority to issue such directives.

In this case, the Department is operating under the authority afforded it by Section 2253 of the Public Health Code (the "Code"), governing epidemics and emergency orders and procedures. Specifically, this section of the Code states: "If the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws."

 The Order provides for the following:

Gatherings

Similar to Executive Order 2020-183, persons at gatherings must maintain six feet distance from one another, and:

1. Indoor gatherings of up to 10 people are permitted at non-residential venues, where each person present is wearing a face covering. Further, indoor gatherings of 10-500 people are permitted at non-residential venues where all persons gathering wear a face covering, and (i) if the venue has fixed seating, attendance is limited to 20 percent of seating capacity, provided that 25 percent seating capacity is permitted in Region 6 (as defined in Executive Order 2020-176), or (ii) if the venue is without fixed seating, attendance is limited to 20 persons per 1,000 square feet in each occupied room, provided that 25 persons per 1,000 square feet in each occupied room are permitted in Region 6.

2. Outdoor gatherings of up to 100 people are permitted at non-residential venues, where each person present is wearing a face covering. Further, outdoor gatherings of 100-1,000 people are permitted at non-residential venues where all persons wear a face covering, and (i) if the venue has fixed seating, attendance is limited to 30 percent seating capacity; or (ii) if the venue is without fixed seating, attendance is limited to 30 persons per 1,000 square feet.

3. Additionally, the following gatherings are among those that are exempt from the gathering requirements noted above: (i) voting or election-related activities at polling places; (ii) law enforcement, correctional, medical, or first-responder trainings (provided these cannot be conducted remotely), (iii) organized sports; and (iv) students in a classroom or daycare setting.

Mask Requirements

Businesses, government offices, schools (except those in Region 6), and other operations may not allow indoor gatherings to take place unless individuals are wearing a face covering. The requirement to wear a face covering does not apply to individuals that (i) are younger than five years old; (ii) cannot medically tolerate a face covering; (iii) are eating or drinking while seated at a restaurant; (iv) are exercising outdoors while maintaining social distancing; (v) are swimming; (vi) are officiating or engaging in religious service; or (vii) are giving a speech for broadcast or to an audience, provide that the audience is socially distant from the speaker. Additionally, face coverings are "strongly recommended" (but not required) for indoor gatherings of up to 10 people occurring at a residence and "recommended" (but not required) for outdoor gatherings of up to 100 people occurring at a residence.

Bars & Restaurants

Similar to Executive Order 2020-183, food service establishments must (i) close indoor common areas in which people can congregate, dance, or otherwise mingle, and (ii) prohibit indoor gatherings anywhere alcoholic beverages are sold except for where patrons are seated and socially distanced from one another.

Organized Sports

The Order permits organized sporting activities including practices and games, so long as (i) athletes wear face coverings (except when swimming) or consistently maintain 6 feet separation, when training for, practicing for, or competing in an organized sport; (ii) the live audience is either limited to two guests per athlete, or complies with the gathering requirements noted above; and (iii) no concessions are sold at indoor events.

Enforcement

A violation of the Order is (i) a misdemeanor punishable by not more than six months' imprisonment, or a fine of not more than $200.00, or both, and (ii) subject to a civil fine of up to $1,000.00. Law enforcement officers are empowered to enforce the Order and specifically authorized to investigate potential violations of the Order.