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Revised MDHHS Order Relaxes Michigan COVID-19 Gathering, Business Capacity Limits

On Tuesday March 2, Governor Gretchen Whitmer and Michigan Department of Health and Human Services (“MDHHS”) Director Elizabeth Hertel announced a revised Gatherings and Facemask Order (the “Revised Order”) which is scheduled to take effect on Friday, March 5.

The Revised Order, which remains in force through April 19, relaxes a number of the state health department’s COVID-19 restrictions and safety protocols. Most notably, the Revised Order increases the gathering and capacity limits set by the previous Gatherings and Face Mask Order issued on February 4. Notable changes under the Revised Order include:

  • Restaurant Capacity Increases and Amended Curfew. Restaurants and bars may have 50% indoor dining capacity, up to 100 people (up from 25% under the February 4 Order). Tables must still be six feet apart, with no more than six people per table. A curfew on indoor dining is still in effect, but is amended from 10 p.m. to 11 p.m.
  • Retail and Business Capacity Increases. Retail shops are allowed to operate at 50% indoor capacity, up from 30%. Venues like movie theaters, bowling alleys and other entertainment purveyors may also increase indoor capacity to 50%, up to 300 people.
  • Increase to Private Gathering Limits. Indoor private residential gatherings are capped at 15 people from three separate households. Outdoor residential gatherings are allowed to have up to 50 people. The February 4 Order previously limited private gatherings to 10 people from two households indoors and 25 people outdoors.
  • Increase to Non-Residential Gathering Limits. Indoor gatherings involving people from different households will be allowed to have up to 25 people (previously 10). Outdoor gatherings are also now permitted to resume with up to 300 people.
  • Athletic Venues and Outdoor Entertainment/Recreation Capacity Increases. Athletic stadiums and arenas that seat 10,000 people or fewer may allow up to 375 attendees (previously 250). If the seating capacity is above 10,000, 750 people may be permitted (previously 500). For outdoor entertainment and recreation facilities, no more than 1,000 patrons may be gathered.
  • Casino and Gym Capacity Increases. Casinos and Gyms are now allowed to function at 30% indoor capacity, however, both remain subject to social distancing requirements - Including that patrons remain six feet apart while using machines. Ice and roller rinks may allow up to 10 persons per 1,000 square feet (up from 4 persons per 1,000 square feet).

While the Revised Order does not explicitly contain any revised information on remote work protocols, MDHHS Director Hertel specified during the joint press conference that remote work protocols should continue in line with all applicable gathering restrictions set forth in the Revised Order. Emergency rules from the Michigan Occupational Safety and Health Administration (“MIOSHA”) remain in effect and require office employees to work from home whenever their work can be done remotely.

These changes come a day after more than a dozen of the state’s largest Chambers of Commerce sent a letter to Governor Whitmer stressing the need for relaxed restrictions and clarity in decision making moving forward. Last week several of these same Chamber groups sent another letter advocating for workers to return to office settings. Meanwhile, the Legislature continues to push back on the Whitmer administration’s COVID-19 restrictions, which has led to disagreement over how and if to spend federal COVID-19 relief funds allocated to the State as well as proposed legislation aimed at limiting MDHHS’ ability to issue orders without legislative approval after 28 days.

The Governor’s office has been careful with its reactions to lobbying efforts and proposed legislation, with spokesperson Bobby Leddy recently stating that the administration, “Will continue to review the data and update its guidance as we fight this virus together." With a slight uptick in reported cases this past week, as well as news that Michigan has the second-highest number of cases nationally of the B.1.1.7 variant, responses like Leddy’s suggest that restrictions will be tightened again if health officials determine that another outbreak is likely.

© 2023 Foley & Lardner LLPNational Law Review, Volume XI, Number 62

About this Author

Steven H. Hilfinger, Foley Lardner, Senior Lender Counsel, Global Finance Lawyer

Steve Hilfinger is a partner and business lawyer with Foley & Lardner LLP. He has more than 25 years of transactional and finance experience, including representing private and public companies, senior lenders, mezzanine lenders and borrowers, venture capital funds and private equity funds, automotive suppliers and other manufacturers. Mr. Hilfinger focuses his practice in corporate and securities law matters, including mergers and acquisitions, corporate restructurings, private equity and venture capital transactions, debt and equity finance transactions, business...

RobNederhood, business lawyer
Senior Counsel

Robert Nederhood is a senior counsel and business lawyer with Foley & Lardner LLP where he focuses his practice on mergers and acquisitions, and represents public and private companies in connection with transactions, corporate restructurings, and commercial contracting. He also has experience representing both debtors and purchasers in connection with the sale of companies in bankruptcy, and assists clients with a variety of Michigan state government matters.

Kenneth A. Johnson Business Attorney Foley & Lardner Detroit, MI

Kenneth Johnson is a business law associate with Foley & Lardner LLP. He is a member of the firm’s Transactions Practice.

Previously, Ken served as a summer associate at Foley’s Detroit Office. Prior to joining Foley, Ken worked as a summer associate assisting with bond issuances and real estate matters for public schools. He was also a founding member of the University of Michigan Health System Finance Development Program, where he worked as a finance and strategy consultant prior to law school.


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