“Unmasking” New Face Mask Requirements

Michigan is one of several states to mandate the use of face masks in public spaces. On July 13, 2020, Governor Whitmer enacted Executive Order 2020-147, requiring individuals to wear a face covering over their noses and mouths “in any indoor public space,” “when outdoors and unable to consistently maintain a distance of six feet or more from individuals who are not members of their household,” and “when waiting for or riding on public transportation, while in a taxi or ride-sharing vehicle, or when using a private car service as a means of hired transportation.”

On July 17, 2020, the Governor enacted Executive Order No. 2020-153, which made several minor changes to the prior order (and replaces it). Both orders outline potential penalties for non-compliance and include several exemptions (the new order clarifies those exemptions). Among other exempt categories, the face mask mandate does not apply to children under the age of five, people who are eating or drinking while seated at a restaurant, or people who “cannot medically tolerate a face covering.” Significantly, the order clarifies that “businesses may not assume that an unmasked customer cannot medically tolerate a face covering, though they may accept a customer’s verbal representation to that effect.” This is a much-needed clarification in light of confusion by business owners as to what type of showing must be made by customers to qualify for the “medical” exemption.

Notably, the Department of Justice (“DOJ”) recently warned of social media posts falsely suggesting that the DOJ had issued “face mask exempt” cards purporting to exempt the holder from face mask rules, and providing that a denial of service would violate the Americans with Disabilities Act (“ADA”). As confirmed by the DOJ: “The ADA does not provide a blanket exemption to people with disabilities from complying with legitimate safety requirements necessary for safe operations.” While the ADA does mandate reasonable accommodations for individuals with qualifying disabilities, determining whether an individual has a “disability” or whether an accommodation is “reasonable” can be thorny legal questions. Fortunately, based on the Governor’s recent order, a verbal confirmation from a customer that he or she cannot tolerate a face covering will suffice for purposes of a business owner’s compliance with that order.

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