DETROIT —Two killings. A stabbing.
Spitting. Cursing. Facebook rants galore.
Michigan’s face mask mandate has triggered a tsunami of rage in recent months, with people on both sides of the issue growing further and further apart over whether the face coverings can and should be mandated as a way to stop the spread of COVID-19.
One side argues the masks will help stop the spread of coronavirus and save lives, while the other says it infringes on their freedom, and that the government is exaggerating the seriousness of the virus.
Adding to the tension are the numerous police agencies, including sheriff’s departments in Macomb and Van Buren counties, who have said they won’t enforce the mask rule.
Caught in the middle are businesses, who have landed in the precarious position of playing cop as they are now required to enforce a new, tougher mask rule that went into effect two weeks ago: They have to turn the mask-less away, or risk a $500 fine or losing their license.
Gov. Gretchen Whitmer issued the tougher mask order following the state’s spike in COVID-19 cases, and last week urged President Donald Trump to issue a federal mandate that requires masks in businesses across the country.
This has many businesses nervous and scared given the hostile and violent behavior witnessed across the country over mask mandates.
On July 14, a 77-year-old Lansing man was stabbed at a Quality Dairy market after getting into a confrontation with a 43-year-old Grand Ledge man who wore no mask. The mask-less man was shot and killed shortly after by a sheriff’s deputy. The stabbing victim survived.
Two days earlier in northern Michigan, a 39-year-old Kalkaska County man allegedly pulled a knife on a Meijer employee who asked him to wear a mask, triggering his arrest and charges.
In May, a security guard at a Flint dollar store was shot and killed after asking a woman to leave the store because her child was not wearing a mask.
That same month in Colorado, a man allegedly shot a cook at a waffle restaurant after being told he wouldn’t be served unless he wore a mask. And a week earlier in Oklahoma City, a customer allegedly opened fire in a McDonald’s after being informed she couldn’t eat in the dining area, striking an employee in the arm.
Masks have been controversial since the start of the pandemic as medical professionals initially gave conflicting opinions on whether or not masks should be worn.
The World Health Organization initially said that only those infected with the virus and those caring for them need to wear the mask, but has since changed that position after reviewing research at Stanford University and elsewhere about the ability of cloth masks to slow the spread of the disease.
WHO’s mask guidelines are now closer in line with those of the U.S. Centers for Disease Control and Prevention, which since early April has recommended masks in public settings where social distancing is difficult.
Earlier in the U.S. outbreak, the U.S. surgeon general also had urged Americans to stop buying masks, and even tweeted in capital letters: “Seriously people- STOP BUYING MASKS!”
But that was when there was a shortage in protective equipment for the health industry. That shortage no longer exists. And the U.S. surgeon general has changed his views.
“This whole administration is now supportive of masks,” U.S. Surgeon General Jerome Adams said last week, imploring Americans to mask up amid a surge of COVID-19 cases across the country.
As of July 26, the U.S. had reported more than 4.1 million cases of COVID-19, and more than 143,000 deaths stemming from the virus. Michigan has seen more than 85,600 cases and 6,402 deaths.
The CDC has said the U.S. could get the pandemic under control, but the public needs to help: face masks need to be worn universally.
“We are not defenseless against COVID-19,” said CDC Director Dr. Robert Redfield. “All Americans have a responsibility to protect themselves, their families, and their communities.”
Like it or not, however, employment lawyers across the country are telling their business clients that the mask laws must and should be followed.
“If a business is located in a jurisdiction where masks are required, the business has an obligation to enforce that law,” said New Orleans employment attorney Mag Bickford, of the McGlinchey firm. “What I’ve been saying is, ‘Do what’s reasonable to protect your employees, clients, vendors, and everyone who walks into your business.’ And wearing a mask is not an unreasonable measure.”
The Detroit Free Press contacted labor and employment firms nationwide that exclusively represent companies in employment matters. More than a dozen firms responded.
All said they are advising their clients to follow government orders.
“We recommend that clients err on the side of safety and follow mask rules,” said Jessica Shpall Rosen, a partner at the management-side firm of Greenwald Doherty, who warns that companies can expose themselves to lawsuits if they ignore mask mandates.
Moreover, Rosen said: “Companies should consider the reputational risks of noncompliance with safety orders.”
There’s also a risk of getting sued by employees who may get infected, warns Nannina Angioni, an employment attorney with the Los Angeles-based firm Kaedian.
“When dealing with employee issues, it’s never a good idea to violate a government order. A company is setting itself up for liability on a host of fronts if it decides not to follow a government mandate,” Angioni says. “Yes, for some reason, whether to wear a mask has become a political issue.”
But, Angioni stressed: “Politics have no place in the workplace. … If an employer decides it knows better when it comes to workplace safety —and that ‘knowing better’ means not complying with a government order —then the employer should be prepared to set aside funds to pay employee claims.”
With COVID-19 cases rising across the country, big-box retailers nationwide are increasingly requiring masks in their stores, including Lowes, Home Depot, Target, Walmart, Kroger and Meijer.
Costco was one of the first large companies to aggressively enforce the mask requirement, months before Whitmer’s stiffer order went into effect. The wholesale giant was met with criticism by mask opponents, some who called for boycotts of Costco, though the company stuck to its no-mask, no-service position.
“We know some members may find this inconvenient or objectionable, but under the circumstances we believe the added safety is worth any inconvenience,” Costco President and CEO Craig Jelinek has said. “This is the right thing to do under the current circumstances.”
Whitmer stiffened the mask rule in response to Michigan’s uptick in COVID-19 cases, which continue to climb on a daily basis, but with few deaths. For example, the state saw more than 100 deaths on one day in April, compared with nine deaths last Tuesday, which also saw more than 570 new cases.
One day after Whitmer’s stiffened mask order went into effect, a longtime Hazel Park pizzeria posted an inaccurate meme about mask-wearing exemptions to its Facebook page and front door recently.
This is what Pizza Connection, a 51-year-old staple in the blue-collar Detroit suburb, had to say about the mask mandate in a July 14 post:
“If you have a medical condition that prevents you from wearing a mask, you don’t need to wear one. If you are not wearing one, we will assume this is the case. Due to HIPAA and the Fourth Amendment we will not ask you about your condition. Thank you for your business and we respect the rights of all.”
A Monroe restaurant named Pete’s Garage reportedly posted the same meme on its page a day earlier and faced swift criticism, deleting the post before the Pizza Connection one went up.
Backlash quickly followed for the pizzeria as more than 400 commenters took to Facebook, most of them overwhelmingly against the statement.
“We’ve been long time customers and absolutely will not be back,” wrote one commenter. “This is inexcusable and completely irresponsible … Way to put the community and your employees that have supported you for all these years needlessly at risk.”
Pizza Connection removed the controversial meme later in the week, alleging in a follow-up post that the owners had received threats and had to get police involved.
A corn dog shack in Grand Haven faced similar backlash after criticizing mask requirements on social media. Pronto Pup owner Carl Nelson vented on his restaurant’s Facebook page that the pandemic isn’t real and that his employees shouldn’t be required to wear masks because of the heat.
Nelson also criticized the Black Lives Matter movement in that same post.
Backlash quickly followed as thousands posted on the corn dog’s Facebook page, many vowing never to visit, while many others supported Nelson’s right to speak his mind.
Legal experts have said that neither HIPAA nor the Fourth Amendment applies to businesses enforcing the state-mandated mask order. The Fourth Amendment applies to action by the state, not private businesses, they have said.
And HIPAA only applies to health care professionals, they said.
“In a pandemic, the employer has a right to protect their staff, and therefore could tell you to wear a mask,” said Richard Toll, CEO of ComplyZoom, a company that helps businesses with HIPAA compliance, among other things. “There’s nothing under HIPAA that prohibits an employer from protecting their employees.”
Under the Americans with Disabilities Act, however, a business cannot ask certain questions about a person’s disability or demand documentation. The most they can do is confirm that a customer has a disability.
Constitutional law expert Lee Strang, a professor of law and values at the University of Toledo College of Law, says businesses are facing “unprecedented” oversight by the government amid the pandemic.
And they have the right to sue over it, he said, noting challenges to mask orders raise two issues: Governors don’t have the power to make such rules, and businesses have a right to run their businesses.
“This is an unprecedented exercise of power, and so I think business owners are right to be skeptical,” Strang said. “The American legal system has recourse for this.”
“There’s a thumb of the scale on the side of the business owner’s freedom,” Strang said, noting that businesses can argue that even if a governor has the power to order a mask rule, “you don’t have a good enough reason to regulate me in this instance.”
“The government has to have some good reasons to regulate (businesses),” said Strang, noting several businesses are preparing to challenge Ohio’s mask order. “I support litigants putting exercises of government power to the test.
“Businesses have a right to challenge government authority,” he said.
Strang would not comment on whether he thinks wearing masks to prevent a disease from spreading is a good enough reason to regulate businesses. He did say that ordering an infected person to quarantine for 14 days would likely pass constitutional muster. But ordering the healthy to stay inside and mask up when they go shopping may be government overreach, he said.
“I can’t think of another instance in American history where the government has exercised so much power in such an aggressive way over so many people for such a long period of time,” said Strang, who cited the 1918 Spanish flu.
During that pandemic, Strang said, only the sick got quarantined, unlike now, where everyone is being ordered to wear masks and socially distance, he said, adding personal liberties are also being trampled on. For example, people who don’t believe in masks are “being forced to publicly express the opposite view,” Strang said.
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The Michigan Retailers Association has said that some retailers have chosen the path of least resistance by assuming that customers not wearing masks have a medical reason for not putting on masks. They take them at their word, and let them shop mask-free.
“Now, it sounds like the governor is requiring that each person without a mask be approached by someone in the store,” Holland said. “That’s concerning.”
Arthur Siegal, an attorney and partner at Jaffe law firm in Southfield who has been closely following the governor’s orders, says business fears are “understandable.”
“There is no perfect solution here. A lot of de-escalation training and calm explanation are good ideas,” Siegal said. “I understand the concern that businesses are being ‘deputized’ to be law enforcement officers.”
Employment attorney Stephen Gee, who works in the Detroit office of the national employment firm of Fisher Phillips, said he and his colleagues cite scientific experts in advising their clients to follow the mask rule.
“We point out that health experts have unanimously declared wearing masks to be one of the most effective ways to prevent the spread of COVID-19,” Gee said.
To avoid potential problems with customers who may get upset by the mask rule, Gee recommends the following guidelines, which are similar to those recommended by the Michigan Civil Rights Commission:
—Post the mask policy online so that customers are aware ahead of time.
—Train staff on how to handle situations where a customer is not wearing a mask. Staff should initially politely inform the customer that the business requires masks and then offer a disposable mask for use.
—If a customer says a medical condition prevents them from wearing a mask, staff should take the customer at their word and offer various alternatives, including curbside service, online shopping or that they wear a full, clear face shield.
—If a customer refuses alternatives, the person should be referred to a manager, addressed in a private area and the designated manager should document every instance in which he or she is asked to deal with a refusing customer.
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Gee said that on its face, Whitmer’s mask mandate “appears enforceable” pursuant to the Emergency Powers of the Governor Act of 1945 and compliant with the Americans with Disabilities Act.
“Therefore,” Gee says, “I would not recommend a client challenge the mask rule.”
Meanwhile, Whitmer says lives and livelihoods are on the line, and that greater compliance with the mask-up order is required to reverse a trend of rising coronavirus cases in Michigan over the last several weeks.
“If everyone in Michigan masks up, we can save thousands of lives and put ourselves in a better position to send our kids back to school in the fall,” Whitmer said. “For the safety of our loved ones and our dedicated first responders on the front lines: Mask up, Michigan.”
Mask violations by customers can be reported to local police or the Attorney General’s Office, and complaints about businesses not enforcing the order can be made to the Michigan Occupational Safety and Health Administration.
Those exempt from wearing a mask in Michigan include people younger than 5, those who cannot medically tolerate a face covering, and those eating or drinking while seated at a food service establishment.
The governor’s order says people worshipping in a church, mosque or other such place are not subject to penalty for not wearing a mask, though the Centers for Disease Control and Prevention strongly encourages the wearing of face coverings during religious services.
(Detroit Free Press staff writers Paul Egan and Mark Kurlyandchik contributed to this report.)
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