Michigan mask requirements – It's complicated

In the wake of the CDC’s May 13, 2021 guidance that fully vaccinated people can gather indoors without wearing masks or physically distancing, unless otherwise required by law or applicable rules, the State of Michigan has modified its own mask wearing requirements. But, figuring out the state’s requirements - well, it’s complicated. 

Let’s try to sort out the current status of the mask wearing requirements in Michigan with a timeline.

• On May 10, Governor Gretchen Whitmer announced that the state had reached the first milestone on its “Vacc to Normal” plan. That triggered the lifting of the state’s remote work requirement as of May 24. However, it was anticipated that returning employees would still be required to wear face masks indoors consistent with the MIOSHA Emergency Workplace Rules.
• Then, on May 13, the CDC issued its Guidance for Fully Vaccinated People, which provides that fully vaccinated individuals do not need to wear masks indoors or outdoors, unless otherwise required by law or applicable rules. Well, there you go, the MIOSHA Emergency Rules and the Michigan Department of Health and Human Services (MDHHS) Gathering and Face Mask Order both still required indoor mask wearing in Michigan.
• Not so fast. On May 14, Governor Whitmer announced that Michigan would follow the CDC guidance and lift the indoor mask wearing requirement for fully vaccinated individuals. But, what about the actual MIOSHA and MDHHS rules requiring mask wearing? According, to the MDHHS Director, modified guidance would be forthcoming. 
• On May 15, the MDHHS did, in fact, issue an updated Gatherings and Face Mask Order that continues the mask wearing requirement, UNLESS one of 12 enumerated exceptions applies.    Exception 1 provides that fully vaccinated persons do not have to wear face masks when participating in indoor gatherings. However, employers should note that:
  • Persons who are not fully vaccinated are still required to wear face masks at indoor gatherings unless another one of the exceptions applies.
  • Further, business owners are responsible for making a “good faith effort” to ensure that all person at their establishment, including employees, comply with requirements for masking.  “Good faith efforts” include posting signs notifying people that mask wearing is required unless an exception – such as vaccination - applies. 
• Is this the end of our journey? In fact, it’s not, because as employers promptly observed, as of May 15, the MIOSHA Emergency Rules still required employees to wear masks indoors whenever they could not maintain 6 feet of distance from others, or in common areas.
• In an effort to clarify the state’s position, on May 17, the Department of Labor and Economic Opportunity (LEO) posted a notice on its website indicating that MIOSHA would soon provide updated workplace rules reflecting the CDC's recent guidance and MDHHS's Order relaxing the face mask requirement for fully vaccinated people. In addition, LEO also indicated that, until those rules are updated, "MIOSHA will consider compliance with the MDHHS order as good faith to comply when responding to employee complaints or conducting investigations related to COVID-19." 
• So, MIOSHA is following the MDHHS’s rule? That’s correct. And, the MDHHS is following the CDC rule, which is fully vaccinated persons are not required to wear a face mask indoors. 
  • Employers can, if they choose, continue their own rules related to mask wearing for the fully vaccinated.
  • In addition, note that as of May 18 the other provisions of the MIOSHA Emergency Rules, such as daily self-screening protocols, have not yet been modified. 
• Does this leave you wondering where the federal agencies fit in?  Well, on May 17, OSHA instructed employers to follow the new CDC mask guidance for people fully vaccinated. The EEOC also chimed in indicating on its website that it’s considering the impact the CDC’s updated guidance might have on advice it has already issued about COVID-19 policies and anti-discrimination laws.
• Got all that? It’s complicated. 

While deciphering the various state and federal guidance has not been easy for employers, the status in Michigan – for now – is that fully vaccinated individuals do not need to wear masks indoors or outdoors (except in some limited settings). Of course, what we have learned during the pandemic is that the status quo rarely stays that way for long. 

The McDonald Hopkins Labor & Employment Law Team will continue to keep employers updated on COVID-19 and return to off developments. Please contact your McDonald Hopkins employment lawyer with any questions.