Insight

What Businesses Need to Know about the Mask Mandate

What Businesses Need to Know about the Mask Mandate

CB

Catherine Brainerd

August 13, 2020 03:01 PM

As positive cases of COVID-19 rise, Gov. Gretchen Whitmer expanded the previous recommendation-only directive for use of a face mask to a mandate. Now, businesses open to the public must refuse entry or service to those not wearing a mask. The order also requires that masks be worn in crowded outdoor spaces, and individuals are required to wear a face-covering in indoor public spaces. The order does provide several exceptions, including children younger than 5 and those who cannot medically tolerate masks. There are many implications to businesses, their patrons, and employees. Once again, businesses are challenged to adapt operations and policies amid the pandemic.

How will the order be enforced?

Executive Order 147 mandates mask usage in a number of places, including businesses open to the public, and leaves enforcement of the mandate largely to those businesses. Some law enforcement agencies at the local level have announced they will not enforce the mandate, putting further pressure on businesses to navigate these uncharted waters. It is unclear if there will be any implications for local law enforcement, but if businesses fail to enforce the mandate, they may be subject to fines and loss of licenses (including, but not limited to, liquor license). Importantly, businesses have the right to put in place and enforce whatever (non-discriminatory) rules it desires. As such, it is not an infringement of someone’s constitutional rights to refuse them entry for failure to follow the business’ rules.

How does the recent order challenge area businesses?

Aside from the obvious challenges of enforcement, businesses — in an already fraught economic environment — often do not want to alienate patrons that choose not to wear a mask, but also desire to protect their employees and other customers. For some businesses, the mask mandate simplifies things: businesses no longer have a choice to allow patrons to enter without masks without facing consequences.

Despite the statewide mandate, some customers will be upset with a business that enforces it. In some cases, employees have been verbally and occasionally physically assaulted. Businesses are left to determine how to keep their employees safe, both from disgruntled patrons and the virus itself.

How do businesses implement the mask requirement?

Businesses open to the public must post signs at the entrance(s) instructing customers to wear masks while inside. As the order requires masks to be worn to enter the premises, businesses likely need to have an employee at least monitoring the entrance to refuse entry to potential patrons who will not comply with the mask mandate; refusing service alone is not sufficient to comply with the order. These requirements were applicable as of July 13, so businesses should comply as soon as possible.

What if customers refuse to wear masks? Employees?

This puts businesses in a tough spot. It is clear that the Executive Order mandates that businesses enforce the mask requirement, but also provides an exemption for medical intolerance. To ensure compliance, the business should ask patrons to don a mask when entering and, if they refuse, inquire as to why. If the customer responds that they are medically exempt, that is probably sufficient for the business to demonstrate compliance with the order. The order does not require someone with a medical intolerance to provide documentation, and the business is left to accept his or her word. However, if the potential patron refuses to wear a mask out of principle or preference, the businesses must refuse entry and service.

Employees refusing to wear masks is a different situation. Importantly, Executive Order 147 is limited to businesses open to the public. Executive Order 145 remains in place and outlines safeguards to protect workers, including requiring masks only where workers cannot social distance. Thus, if a business is not open to the public, and its workers can safely social distance, masks are not required.

However, if your business is open to the public, or workers cannot safely social distance, orders 145 and 147 mandate wearing masks, with limited exceptions, including medical intolerance. Most physicians agree, though, that if someone has a condition that makes wearing a mask intolerable, they likely are medically fragile enough they should not be in the workplace at all. If an employee insists that he or she cannot wear a mask, the employer should engage in an interactive process under the American’s with Disabilities Act to determine what, if any, accommodations should be made.

The Employment Law Team at Rhoades McKee will continue to assist employers to navigate all of the legal issues emerging from the COVID-19 Pandemic.

Trending Articles

Introducing the 2026 Best Lawyers Awards in Australia, Japan, New Zealand and Singapore


by Jennifer Verta

This year’s awards reflect the strength of the Best Lawyers network and its role in elevating legal talent worldwide.

2026 Best Lawyers Awards in Australia, Japan, New Zealand and Singapore

Discover The Best Lawyers in Spain 2025 Edition


by Jennifer Verta

Highlighting Spain’s leading legal professionals and rising talents.

Flags of Spain, representing Best Lawyers country

How to Increase Your Online Visibility With a Legal Directory Profile


by Jennifer Verta

Maximize your firm’s reach with a legal directory profile.

Image of a legal directory profile

Effective Communication: A Conversation with Jefferson Fisher


by Jamilla Tabbara

The power of effective communication beyond the law.

 Image of Jefferson Fisher and Phillip Greer engaged in a conversation about effective communication

Paramount Hit With NY Class Action Lawsuit Over Mass Layoffs


by Gregory Sirico

Paramount Global faces a class action lawsuit for allegedly violating New York's WARN Act after laying off 300+ employees without proper notice in September.

Animated man in suit being erased with Paramount logo in background

The Future of Family Law: 3 Top Trends Driving the Field


by Gregory Sirico

How technology, mental health awareness and alternative dispute resolution are transforming family law to better support evolving family dynamics.

Animated child looking at staircase to beach scene

The 2025 Legal Outlook Survey Results Are In


by Jennifer Verta

Discover what Best Lawyers honorees see ahead for the legal industry.

Person standing at a crossroads with multiple intersecting paths and a signpost.

Safe Drinking Water Is the Law, First Nations Tell Canada in $1.1B Class Action


by Gregory Sirico

Canada's argument that it has "no legal obligation" to provide First Nations with clean drinking water has sparked a major human rights debate.

Individual drinking water in front of window

New Mass. Child Custody Bills Could Transform US Family Law


by Gregory Sirico

How new shared-parenting child custody bills may reshape family law in the state and set a national precedent.

Two children in a field holding hands with parents

The Best Lawyers Network: Global Recognition with Long-term Value


by Jamilla Tabbara

Learn how Best Lawyers' peer-review process helps recognized lawyers attract more clients and referral opportunities.

Lawyers networking

Jefferson Fisher: The Secrets to Influential Legal Marketing


by Jennifer Verta

How lawyers can apply Jefferson Fisher’s communication and marketing strategies to build trust, attract clients and grow their practice.

Portrait of Jefferson Fisher a legal marketing expert

Finding the Right Divorce Attorney


by Best Lawyers

Divorce proceedings are inherently a complex legal undertaking. Hiring the right divorce attorney can make all the difference in the outcome of any case.

Person at a computer holding a phone and pen

The Future of Canadian Law. Insights from Best Lawyers: Ones to Watch Honorees


by Jennifer Verta

Emerging leaders in Canada share their perspectives on the challenges and opportunities shaping the future of Canadian law

Digital eye with futuristic overlays, symbolizing legal innovation and technology

New Texas Law Opens Door for Non-Lawyers to Practice


by Gregory Sirico

Texas is at a critical turning point in addressing longstanding legal challenges. Could licensing paralegals to provide legal services to low-income and rural communities close the justice gap?

Animated figures walk up a steep hill with hand

Is Your Law Firm’s Website Driving Clients Away?


by Jamilla Tabbara

Identify key website issues that may be affecting client engagement and retention.

Phone displaying 'This site cannot be reached' message

Family Law Wrestles With Ethics as It Embraces Technology


by Michele M. Jochner

Generative AI is revolutionizing family law with far-reaching implications for the practice area.

Microchip above animated head with eyes closed