New MDHHS Order, CDC Guidance, and EEOC Q&A Updates

By Rebekah Page-Gourley posted 12-18-2020 15:44


On Friday, December 18, 2020, the Michigan Department of Health and Human Services (MDHHS) issued a new Gatherings and Face Mask Order replacing the previous one, which went into effect on December 7, 2020. Effective from December 21 through January 15, 2021, the new order includes most of the same provisions as the previous order but loosens some restrictions at certain lower risk entertainment and recreational facilities. Along with the new order, the MDHHS issued the following supplemental materials: Epidemic Order Key Metrics, Epidemic Order Infographic, Epidemic Capacity Limits Fact Sheet, and Epidemic Outdoor Seating Enclosures. The Centers for Disease Control and Prevention (CDC) and the Equal Employment Opportunity Commission (EEOC) have also recently issued updated guidance, discussed below.

December 18 MDHHS Gatherings and Face Mask Order Updates

Highlights of the December 18 order include the following (items in bold indicate provisions not in the previous order):

  • Definitions of a number of terms, including child-care organization, gathering, household, and symptoms of COVID-19. The list includes a definition for indoors (“‘Indoors’ means within a space that is fully or partially enclosed on the top, and fully or partially enclosed on two or more contiguous sides. Additionally, in a space that is fully or partially enclosed on the top, and fully or partially enclosed on two non-contiguous sides, any part of that space that is more than 8 feet from an open side is indoors.”). It also adds definitions for lower risk entertainment facility (which includes places like cinemas, stadiums, and concert halls), higher risk recreational facilities (like water parks and strip clubs), and lower risk recreational facilities (like amusement parks, bowling centers, and casinos).
  • Prohibition of indoor gatherings at nonresidential venues. Gatherings are permitted at residential venues only if no more than 10 people from no more than two households are gathered. Such gatherings should be held consistent with MDHHS’s Social Gathering Guidance, which includes limiting time indoors and wearing a mask when not eating or drinking.
  • Prohibition of outdoor gatherings at residential venues unless there are 25 or fewer people from no more than three households. At nonresidential venues, outdoor gatherings are permitted if there are 25 or fewer people at venues without fixed seating (limited to 20 people per 1,000 square feet) and 25 or fewer people at venues with fixed seating (limited to 20 percent of seating capacity of the venue).
  • Enumerated exceptions to the limitations on gatherings:
    • incidental gatherings at airports, malls, and the like
    • gatherings between an employee and a customer for the purpose of receiving service
    • workplace gatherings consistent with the Michigan Occupational Safety and Health Administration (MIOSHA) Emergency Rules issued October 14, 2020 (Note that under the MIOSHA emergency rules, employers must “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.)
    • voting or official election-related activity
    • certain trainings that cannot be conducted remotely
    • pre-K through 8th grade education and support services
    • childcare organizations and camps, including after-school programs
    • public transportation
    • gatherings for medical treatment, including mental health and substance abuse treatment
    • gatherings of up to 25 people for a funeral
    • gatherings at residential care facilities, subject to the October 21, 2020, epidemic order, regarding requirements for residential facilities or any replacement to it
    • CPR courses and proctored nationally administered admissions certification examinations, under certain conditions
    • Gatherings at lower risk entertainment facilities and lower risk recreational facilities that comply with the order’s restrictions
    • Gatherings for public health or other emergency purposes
  • Requirements that organizers and facilities design gatherings to encourage and maintain physical distancing.
  • Specific gathering requirements for certain permitted gatherings at lower risk entertainment facilities and lower risk recreational facilities, including prohibitions on mingling between households and enforcement of distancing guidelines.
  • Prohibition of indoor drinking or dining at food service establishments, excepting custodial settings, medical care facilities, school cafeterias, shelters, and soup kitchens. Outdoor dining is permitted if diners are seated no more than six people to a table and tables are spaced at least six feet apart.
  • Retail stores, libraries, and museums may operate at 30 percent of total occupancy limits but may permit one customer at a time to enter if strict adherence to this rule would result in closure. Retail stores must establish lines to enforce distancing. Any spaces for indoor dining, including food courts, must be closed.
  • Exercise facilities may operate at 25 percent of total occupancy limits, and there must be twelve feet of distance between each occupied work station. Group fitness classes are prohibited indoors but are permitted outdoors. Pools are allowed to open for individual exercise.
  • Gatherings in outpatient waiting rooms are permitted with distancing regulations. To the extent possible, this should include asking patrons to wait in their cars until called.
  • Gatherings at outdoor ice and roller rinks are permitted, except for organized contact sports, provided that occupancy is limited to 2 persons per 1,000 square feet, including within the exercise space.
  • Personal care service providers may operate to the extent that services do not involve the removal of face masks, and all services must be provided by appointment.
  • Gatherings at public, nonpublic, and boarding schools for in-person instruction through grade 12 are permitted subject to local health department and school district decisions. Gatherings for extracurricular activities are permitted unless the activities involve physical contact among participants, a high degree of exhalation or physical exertion indoors, or where masks cannot be worn.
  • Gatherings at colleges and universities, trade schools, and career schools are permitted for in-person classes and other institution-sponsored events, subject to the limitations in this order.
  • Gatherings for the purpose of indoor organized sports and contact organized sports and extracurricular activities are prohibited unless all participants, teams, and venues comply with the enhanced testing regimen specified in the MDHHS guidance or a school is participating in an MDHHS testing pilot program. Professional sports (and a limited number of NCAA sports) are allowed to proceed. Gatherings for the purpose of outdoor, non-contact sports are permitted.
  • Face masks are required at all gatherings, including private residential gatherings of more than one household. The same list of exceptions to the face mask requirements apply as in the previous order, except there is no exception for residential gatherings and no exception for nonmedical services.
  • Contact tracing requirements for gatherings at personal service providers, exercise facilities, in-home services, and more. The new order states that the data collected must not be sold or used for sales or marketing without express permission, must be protected as confidential, “[m]ust not be provided to law enforcement or immigration officials except upon receipt of a lawful subpoena from a court or other lawful court order,” and must be retained for 28 days, after which time it must be destroyed.
  • As with prior orders, nothing prohibits religious worship.
  • As with prior orders, violations of the order are punishable by a civil violation of up to $1,000 per violation or per day of continued violation.

CDC Guidance Updates Regarding Quarantine Requirements

The CDC recently revised its close-contact quarantine guidance based on scientific findings released December 2, 2020. Based on an evaluation of these findings, MDHHS updated its guidance to allow modifications to the standard 14-day quarantine period for Michigan residents under certain circumstances. Specifically, the period can be reduced to 10 days if “[t]he individual does not develop any symptoms or clinical evidence of COVID-19 infection during daily symptom monitoring for the 10 days after the last exposure” and “[d]aily symptom monitoring continues through day 14 after the last exposure.”

EEOC Q&A Updates Regarding COVID-19 Vaccination Policies

Additionally, on December 16, 2020, the EEOC published new Q&As in their guidance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Among other things, the guidance provides the following regarding employers’ COVID-19 vaccination policies:

  • The COVID-19 vaccination is not a “medical examination” under the ADA and employers who administer it to employees do not have to meet the ADA’s “job-related and consistent with business necessity” standard. The Q&As also address the CDC’s recommendation for prescreening questions.
  • Employers may put a “qualification standard” in place, requiring that an individual “shall not pose a direct threat to the health or safety of individuals in the workplace.” The guidance specifically states that “if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation’” under the ADA.
  • If an employee’s disability prevents them from being vaccinated and the employer determines that the individual poses a “direct threat,” the employer “cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”