Guidance for Michigan employers concerning the CDC’s new mask recommendations

On July 27, 2021, the CDC reversed course from its previous guidance and issued a recommendation that everyone, including fully vaccinated individuals, wear masks in public indoor settings in areas of substantial or high transmission.

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.