Are Masks Back?

Which areas have substantial or high transmission?

The CDC has created and regularly maintains a Level of Community Transmission COVID-19 Tracker on its website. The CDC tracker shows which counties in each state have a low, moderate, substantial, or high level of COVID-19 community transmission. For those counties with substantial or high levels, the CDC recommends all individuals wear masks while indoors in public.

At the time of this article, pursuant to the CDC, seven counties in Michigan are experiencing high levels of transmission and 24 counties (including Oakland, Macomb, Ingham, Livingston, and Genesee County) are experiencing substantial levels of transmission.

Has the State issued any new orders or requirements relating to masks?

Governor Whitmer has stated that she does not anticipate issuing another pandemic-related order in the near future, however, she is urging all individuals to become vaccinated and to wear a face covering when in public indoor places.

Employers and individuals alike should review publications from their local health departments to ensure no new emergency orders have been issued in the counties in which they work and/or reside.

What legal obligations should employers keep in mind? 

The CDC’s new mask recommendations are guidance and are not legally binding upon employers. However, employers should remember that the Occupational Safety and Health Act requires all employers to abide by the general duty clause.

The general duty clause requires employers to provide employees with employment and a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. A violation of the general duty clause could result in a penalty of up to $7,000.00.

To assist employers, the Occupational Safety and Health Administration (OSHA) has released guidance on mitigating and preventing the spread of COVID-19 in the workplace. In this guidance, OSHA references the CDC’s guidance on masks and other safety measures. Accordingly, employers can anticipate that OSHA will rely on CDC recommendations to determine whether an employer has abided by the requirements of the general duty clause.  In the spirit of providing a safe workplace some large employers have begun to require all on-site staff to wear masks at work.

Michigan employers who have questions about face mask policies or other related COVID-19 safety measures, including mandatory vaccine policies, are encouraged to reach out to a Kerr Russell employment attorney for additional guidance.

About the authors:

Mark C. Knoth chairs the firm’s Labor, Employment, Employee Benefits & ERISA Practice Group. He counsels and advises business owners, managers and human resources professionals on workplace issues. These include civil rights and anti-discrimination laws; employee discipline; wage and hour; overtime; employee leaves; reasonable accommodations; veterans issues; picketing; secondary boycotts; reductions in force; drug testing; unemployment compensation; affirmative action; and union organizing campaigns, among other matters. He additionally drafts employee policies, handbooks, contracts, and covenants not to compete, and investigates threats of violence, allegations of harassment, and other employee misconduct.

Olivia V. Hankinson counsels and advises business owners, managers and human resources professionals on various labor and employment related issues. These often involve concerns which may implicate employment laws including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Michigan Persons with Disabilities Civil Rights Act, the Family and Medical Leave Act, the National Labor Relations Act, and the Michigan Occupational Safety and Health Act. Olivia represents employers with respect to unemployment insurance hearings, MIOSHA violation allegations, EEOC investigations, and other employment law matters. She also drafts employee handbooks, employment agreements, restrictive covenants, and various other employment policies.

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