COVID-19 Update: The Department of Health Expands Upon its Prior Order

Last week I updated you on the October 5, 2020 Michigan Department of Health & Human Services (DHHS) Order regarding masks and gatherings. That Order has been replaced with expanded requirements that largely mirror what was in place previously under the Governor’s Executive Orders. The expanded DHHS Order is here.
On October 2, the Michigan Supreme Court decided that a 1945 law providing the Governor with emergency powers was unconstitutional (thus eliminating her ability to issue orders related to COVID-19 under that law). DHHS is acting under a different law (specific to the Department of Health) than the Governor previously acted.
Key changes in the new DHHS Order:
  • Capacity and gathering restrictions for certain venues and establishments (returning to prior rules that were in place);
  • Worker protections (returning to many prior rules that were in place):
  • Food service establishment rules (expanded more to reflect prior rules);
  • Contact tracing rules for certain establishments and venues (returning to prior rules that were in place); and
  • Stronger penalty language.
Changes to the prior DHHS Order are set forth below (bolded sections reflect the changes from my prior post). If you read that Update, you can skip to the bolded sections.


Definition of “gathering”: Anytime two or more people from multiple households are in the same space beyond incidental gatherings (such as at an airport, factory floor, restaurant, mall, pool, or workplace).

Indoor gatherings at a residence: Up to 10 people allowed (face coverings strongly recommended).

Indoor gatherings at a non-residential venue: Up to 10 people allowed plus wear a face covering.  Indoor gatherings of more than 10 to up to 500 people occurring at a nonresidential venue are permitted only to the extent that the organizers and venue:

  • If fixed seating, limit attendance to 20% of seating capacity (25% of seating capacity are permitted in Region 6).***
  • If no fixed seating, limit attendance to 20 people per 1,000 square feet in each room (25 people in Region 6).
  • Require that everyone wear a face covering.

Outdoor gatherings at a residence: Up to 100 people (face coverings recommended).

Outdoor gatherings at a non-residential venue: Up to 100 people plus wear a face covering.

  • If fixed seating, 100 to 1,000 people  allowed if organizers and venue limit attendance to 30% of seating capacity.
  • If no fixed seating, limit attendance to 30 persons per 1,000 square feet (including within each event space).
  • Require everyone wear a face covering.

Six-Feet Distancing: Anyone hosting gatherings must ensure that non-household members maintain 6-feet of distancing and design the gathering to encourage this distancing.

*** Region 6 consists of the following counties: Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle, and Emmet.


In addition to the attendance limits set forth above, the following also apply to specific locations and venues:
Retail Stores, Libraries Museums: Except in Region 6, cannot exceed 50% of fire occupancy limit.
Sports and Exercise Facilities (including gyms, fitness centers, rec centers, exercise studios, bowling alleys, rinks, trampoline parks): Cannot exceed 25% fire occupancy limit and must have more than 6 feet between workout stations.
Waiting Rooms in Outpatient Heath Care Facilities, Vets, Personal Care Services:Gatherings prohibited unless system in place to ensure people not part of the same household are 6 feet apart (including having patients wait in cars until appointment called).
Professional Sports and Entertainment Facilities (including theatres, concerts, and arenas): Gathering prohibited unless venue ensures patrons not part of same household are 6 feet apart.
Outdoor Pools: Do not exceed 50% of bather capacity.
Indoor Pools: Do not exceed 25% of bather capacity.
Casinos: Do not exceed 15% of fire occupancy limit.


Workplace Gatherings Face Coverings & Distancing:
  • If gatherings are strictly necessary to perform job duties, then maintain 6-feet of distancing where practicable (except Region 6);
  • Wear a face covering if cannot maintain 6-feet of distancing
  • Wear face coverings in shared spaces (such as restrooms, conference rooms, hallways).
Sick or Exposed Workers: Employees who are recommended per CDC guidance to quarantine, who have been instructed to stay home by a health official, or who are waiting for a COVID-19 test or test results after displaying symptoms must not be present at a gathering at work until —
  • the employee is advised by a health professional they may return or
  • 24 hours have passed since the resolution of fever without meds AND 10 days have passed since symptoms first appeared or since a test with a positive result AND other symptoms have improved.
Daily Screenings: All businesses or operations requiring employees to gather with others for work must conduct a daily self-screening for employees or contractors entering the work place. At a minimum, the screening must include a questionnaire about COVID-19 symptoms and suspected or confirmed exposure.


Masks Required: Masks are still required when there are indoor gatherings at businesses, government offices, schools, and other operations. Region 6 schools are excepted (but face coverings are recommended [The order was updated to make it clear that “a personal responsible for” each of these entities must ensure face coverings are worn]
Child Care Organizations: Rules for mask wearing in child care organizations were set forth in the new order (including bus transit and camps).
Signs: A person responsible for establishments open to the public must post signs at the entrance instructing customers of the obligation to wear a face covering and to not enter if they are or have recently been sick.
Exceptions to face covering requirements: Although strongly encouraged, the face covering rule does not apply to anyone:
  • Younger than 5 (and per CDC, children under 2 should not wear a mask), except as outlined for child care settings;
  • Who cannot medically tolerate a face covering;
  • Eating or drinking while seated at a food service establishment;
  • Exercising outdoors and able to consistently maintain 6 feet of social distancing;
  • Swimming;
  • Receiving a service for which temporary removal of the face covering is necessary;
  • Asked to temporarily remove a face covering for identification purposes;
  • Communicating with someone who is deaf/deafblind/hard of hearing and ability to see the mouth is essential to communication;
  • Actively engaged in a public safety role and wearing a mask would seriously interfere in the performance of public safety responsibilities;
  • At a polling place for purposes of voting in an election;
  • Officiating or engaging in a religious service;
  • Giving a speech for broadcast or to an audience, provided that the audience is at least six feet from the speaker.
Medical Exception:  While an organization or office cannot just assume someone meets an exception when they enter, the business or operation can accept a verbal representation that they meet an exception.


Restaurant rules have been updated to reflect prior rules. The following apply to restaurants and other food service establishments:
  • close Prohibit gatherings in indoor common areas where people can congregate, dance, or otherwise mingle;
  • Maintain 6-feet of distancing between each party;
  • Limit seating to 50% of capacity;
  • Prohibit indoor gatherings If alcoholic beverages are sold for consumption onsite, parties must be seated and separated from one another by at least 6 feet and not intermingle;
  • Customers not seated must wait outside if seating is unavailable;
  • If an employee is confirmed positive for COVID-19 or shows symptoms while at work, the food service establishment cannot have any gatherings until a deep cleaning has occurred.


Organizers and venues of organized sports must ensure:
  • Athletes wear a face covering (except when swimming) or consistently maintain 6 feet of social distance (except for occasional and fleeting moments). Even if an athlete has a medical issue, a face covering is required.
  • Follow DHHS guidance for playing a sport safely.
  • Limit live audience up to 2 guests per athlete or comply with gathering and face covering requirements above.
  • Indoor organized sports: no concessions may be sold.
  • Professional sports teams and professional athletes may engage in professional sports, provided that: (1) a COVID-19 safety plan is followed that is consistent with CDC guidance and DHHS; and (2) 6-feet distancing is maintained to extent possible for the sport.


Several categories of businesses must maintain accurate records to aid with contact tracing, including the date and time of entry, names of customers/patrons, and contact information. Entry must be denied if a visitor refuses to provide at least a name and phone number.
The following must track this data:
  • Barbers, cosmetology providers, body art services, tanning, massage, and personal care services.
  • Sports and entertainment facilities, except outdoor, unticketed sporting events.
  • Gyms, fitness centers, recreation centers, exercise facilities, exercise studios, bowling alleys, roller rinks, ice rinks.
All businesses or operations that provide in-home services (including cleaners, repair persons, and painters) must maintain accurate appointment records, including date and time of service, name of client, and contact information.


Local health departments and law enforcement are authorized to carry out and enforce the order and law enforcement can investigate and enforce the order.
A violation is a misdemeanor punishable by imprisonment for up to 6 months and/or a fine up to $200.  Additionally, violations are punishable by a civil fine of up to $1,000 for each violation or day that a violation occurs. Places of worship and those engaging in worship at such places are not subject to penalty.
As always, this update does not constitute legal advice.