On Friday July 10, 2020, Michigan Governor Gretchen Whitmer gave businesses that are open to the public a new mandate to enforce mask-wearing in Executive Order 2020-147.
While mask wearing in indoor public places was already required under numerous other executive orders issued by the Governor, this one is different because it puts the onus on the business to post a sign at entrance notifying customers of the requirement, deny entry to customers not wearing a mask, and deny service to non-mask-wearing individuals. The order also requires individuals to wear a mask when outdoors and not able to socially distance six feet or more, and when riding on public transportation or in taxis or ride shares.
There are number of exclusions to the order, including for children younger than five years old; individuals eating or drinking while seated at a food service establishment; for daycare and day camps; religious worship in a house of worship; and those who cannot medically tolerate a face covering.
The new order provides that willful failure to comply comes with a new penalty: a misdemeanor violation, or suspension of the business’s license to operate. While the order is not clear as to who could face a potential misdemeanor charge—the employees who fail to enforce the order, the individual who refuses to wear a mask, or both—the most likely to face criminal liability will be employees. (The business itself will usually be organized as a legal entity, and thus not subject to criminal penalty.) However, the business itself could be subject to temporarily losing its license to operate, which could result in further economic hardship.
So what is a public-facing business to do?
- Establish a policy that requires all customers and other individuals entering the premises to wear a mask. Post the policy publicly and at the entrance of the business.
- Develop an employment policy on how to enforce the new order, e.g. position one employee at the entrance to police the new order.
- Train employees on the new policies and repercussions for non-compliance and be committed to enforcing the new rule.
At a time when businesses are coping with so much uncertainty, having to enforce this order seems burdensome. But from a practical standpoint, this order will be difficult to enforce, and primarily serves as a deterrent for the individuals who are reluctant to follow the state guidelines already in place.
The order was effective immediately for individuals, and takes effect Monday, July 13 for businesses.
