Masking Up in Michigan: Governor’s New Executive Orders Impose New Face Covering Requirements and Extension of Electronic Public Hearings Among Other Provisions > Fahey Schultz Burzych Rhodes
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Masking Up in Michigan: Governor’s New Executive Orders Impose New Face Covering Requirements and Extension of Electronic Public Hearings Among Other Provisions

July 2020

From March through June, Governor Gretchen Whitmer issued “Stay-at-Home” orders, restricting those who were not classified as essential workers. With recent restrictions lifted, COVID-19 cases have been increasing.

In light of these increases, Governor Whitmer issued two new Executive Orders on July 17, 2020, to combat the spread of the virus. The first, Michigan Executive Order 2020-153, addresses individuals’ obligations to wear face coverings as well as penalties for failure comply with the order. The second, Michigan Executive Order 2020-154, issues requirements for and extends public bodies’ ability to host electronic meetings of public bodies. In addition, Michigan Executive Order 2020-154 authorizes alternative forms of notice for tax abatement hearings and authorizes certain state agencies to hold hearings online.

Executive Order 2020-153: Clarification on Mask Requirements

Governor Whitmer strengthened her previous order requiring all residents of Michigan to wear a mask in indoor public spaces and crowded outdoor spaces by issuing Michigan Executive Order 2020-153 (the “Mask Order”). This order, while effectively rescinding Executive Order 2020-147, reissues the requirements of Executive Order 2020-147.

The Mask Order maintains a significant part of its predecessor, which imposes a misdemeanor for those who violate the order. The Mask Order does make clear that despite imposing restrictions on indoor public places, there is no requirement to wear a mask at a polling place with the purposes of voting in an election. The Governor further clarifies that businesses do not assume that an unmasked customer cannot medically tolerate a face covering. Businesses can accept a customer’s verbal representation stating such. Last, the Mask Order focuses upon public safety officers, indicating that such officers must wear face coverings unless doing so would seriously interfere with the performance of the officer’s responsibilities.

These changes from the predecessor order (2020-147) are in addition to the prior requirements for face coverings. Thus, any individual who leaves their home or place of residence must wear a face covering over their nose and mouth when:

  • In any indoor public space;
  • Outdoors and is unable to consistently maintain a distance of six feet or more from other individuals who are not members of their household; and
  • Waiting or riding on public transportation, while in a taxi or a ridesharing vehicle, or when using a private car service as a means of hired transportation.

The face covering requirement is strongly encouraged even if an individual is not required to wear one. With that being said, individuals who are not required to wear a face mask include:

  • Children younger than five years old, per guidance from the Center for Disease Control and Prevention (“CDC”);
    • Children under the age of two should not wear a mask;
  • Individuals who cannot medically tolerate a face covering;
  • Individuals who are eating or drinking while seated at a food service establishment;
  • Individuals who are exercising when wearing a face covering would interfere with the activity;
  • Individuals who are receiving a service for which temporary removal of the face covering is necessary;
  • Individuals who are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes;
  • Individuals who are communicating with someone who is deaf, deaf-blind, or hard of hearing and where the ability to see the mouth is essential to communication;
  • Individuals who are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel and where wearing a mask would seriously interfere in the performance of their public safety responsibilities;
  • Individuals who are at a polling place for purposes of voting in an election;
  • Individuals who are officiating at a religious service; and
  • Individuals who are giving a speech for a broadcast or to an audience, provided that the audience is six feet away from the speaker.

The Mask Order also directly focuses upon municipal offices. Under the order, no business, government office, or operation that is open to the public may provide service to a customer or allow a customer to enter its premises unless the customer is wearing a face covering as required by this order. Consistent with the predecessor order, the Mask Order imposes a misdemeanor on willful violations of the order, but no term of confinement may be imposed.

Municipalities should carefully consider the Mask Order and the requirements imposed therein. Above all else, the issue of wearing or not wearing masks has messaging that exceeds the simple public health and safety reasons for doing so. Municipalities should keep that in mind with their messages and signs, so as to maintain the safety of their officers, employees, and residents.

Michigan Executive Order 2020-154: Ability to Hold Electronic Public Meetings Extended.

Beginning in March 2020, municipalities were faced with the daunting task of holding public meetings and hearings to address urgent budgeting requirements while complying with the Michigan Open Meeting Acts. Understanding the difficult circumstances created by ambiguity in the Open Meetings Act as to whether remote electronic meetings were permissible, Governor Whitmer issued orders allowing remote electronic public meetings and hearing. Through individual orders, the Governor has extended the ability to hold such meetings.

More recently, the Governor issued Michigan Executive Order 2020-154 (“Electronic Meeting Order”), which provides flexibility for local governments to conduct their business while mitigating against large assemblies of individuals and restricting the spread of COVID-19. Under the Electronic Meeting Order, public bodies may continue to meet remotely (following the procedure established by the executive order) until 28 days after the end of any COVID-19 state of emergency.

Remote Meeting Requirements

Similar to previous Executive Orders, the Electronic Meeting Order temporarily suspends “physical place” or “physical-presence” requirements of section 3 of the Open Meetings Act (“OMA”) to allow electronic public meetings. The Order still requires an electronic meeting of a public body to follow these procedures:

  • An electronic meeting of a public body must allow both the general public and members of the public body to be able to participate by electronic means. Permissible examples of electronic meetings include both telephone and video conferencing.
  • An electronic meeting of a public body must permit two-way communication.
  • Individuals participating in the electronic meeting of the public body are considered present and in attendance at the meeting and can participate in the meeting as if they were physically present at the meeting.
  • If the public body directly or indirectly maintains an official internet presence, the public body must, in addition to any other applicable notice requirements under the Open Meetings Act, post advance notice of a meeting held electronically on part of the website that is fully accessible to the public. The public notice must be on the website’s homepage or on a separate webpage dedicated to public notices for non-regularly scheduled public or electronic meetings and accessible through a prominent and conspicuous link on the website’s home page that clearly describes its purpose for public notification.
  • The electronic notice must describe the following:
    • An explanation why the public body is meeting electronically;
    • Detailed procedures on how the public can participate in the meeting (i.e. by listing the telephone number, internet address, or both).
    • How to contact members of the public body to provide input or ask questions on any business that will come before the public body at the meeting.
    • How persons with disabilities can participate in the meeting.
  • A person must be allowed to address an electronic meeting of a public body under the rules established and recorded by the public body. A person cannot be excluded from a meeting of a public body, electronic or otherwise, except for breaches of the peace actually committed during the meeting.
  • During electronic meetings of the public body, members of the public body are encouraged to take all votes by roll call.
  • During an electronic meeting of a public body, members of the general public participating in the meeting may be excluded from participating in a closed session of the public body held electronically, so long as the public body convened and held the closed section in compliance with the requirements of the OMA for closed session.  

Noting that the purpose of the Open Meetings Act includes promoting government accountability and fostering openness in government to enhance responsible decision making, the Electronic Meeting Order discourages members of a public body using email, texting, instant messaging, or otherwise electronically communicating with other members of the public body during an electronic meeting in a manner not accessible to the public.

Conclusion

Unquestionably, the law surrounding COVID-19 and how local governments can conduct business is changing rapidly. We encourage local governments to continue monitoring the Governor’s Executive Orders, as the state government’s response to COVID-19 has been fluid. If you have specific questions about how the requirements of these executive orders or any other Executive Order impacts your municipality, we encourage you to contact our Municipal Attorneys at Fahey Schultz Burzych Rhodes, PLC. We also encourage you to visit the resources section of our website where we have addressed numerous other COVID-19 issues: https://www.fsbrlaw.com/Resources/Township-Law-E-Letters


This communication is not intended to constitute legal advice. Since the emergency regulations and guidelines are evolving rapidly and each of your circumstances are unique, we encourage you to reach out to us if you have questions about how this or other COVID-19 related government action. 


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