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September 4 2020

Latest Executive Orders Open Gyms, Indoor Pools and Address Organized Sports

By: Nikole L. Canute and Regina M. Gilmour

Yesterday afternoon, Governor Whitmer issued two executive orders, 2020-175 and 2020-176, (collectively, the “Orders”) which address the opening of gyms and organized sports, respectively.  After gyms were permitted to open in certain northern Michigan counties and the Upper Peninsula, Michiganders in the lower counties have been waiting for Governor Whitmer to permit them to re-enter gyms.  Likewise, student athletes and parents alike have been seeking instruction on the state of organized sports in Michigan.  The specifics of the Orders are outlined below.   

EO 2020-175

Entitled “Safeguards to protect Michigan workers from COVID-19,” this Order replaces executive order 2020-161, and states that gyms must require patrons to wear masks at all times, including when they are working out.  Gyms are also limited to 25% occupancy, and workout stations must allow patrons to remain six feet apart during exercise sessions or have six feet of space enforced by barriers.  Gyms are also required to reduce group exercise classes to allow six feet of distance between each participant. 

Furthermore, gyms are instructed to institute additional sanitation measures and increase air flow.  Specifically, exercise facilities must:

  • Provide equipment-cleaning products throughout the facility for use on equipment
  • Make hand sanitizer, disinfecting wipes, soap and water, or similar disinfectant readily available
  • Regularly disinfect exercise equipment, including immediately after use
  • Ensure that ventilation systems operate properly, and
  • Increase introduction and circulation of outdoor air as much as possible by opening windows and doors, using fans, and other methods.

The Order also permits indoor pools to open if capacity is limited to 25%, and re-states several worker protection measures contained in prior executive orders that businesses are required to implement and maintain.

EO 2020-176

This Order replaces the prior Safe Start order (2020-160) and offers guidance on both indoor and outdoor sports.  Athletes participating in organized sports are required to maintain six feet of distance from one another to the extent possible and wear a mask at all times.  Swimming is exempt from those restrictions. 

The Order also imposes limitations on the number of spectators who can be present at organized sporting events.  Indoor sports competitions may only have 2 guests per athlete, or the event is limited to 100 or fewer people, including athletes, coaches, participants, spectators, etc.  Professional sports leagues and teams are not permitted to have a live audience, excluding media personnel who are recording or reporting on the event and the facility’s staff.  The professional sporting events are governed by the guidance from the Center for Disease Control and Prevention and Department of Health and Human Services (“DHHS”). 

EO 2020-176 does not alter multiple restrictions previously ordered, such as the capacity limitations on indoor and outdoor social gatherings and organized events (10 and 100, respectively), and the closure of theaters, cinemas, and performance venues.

Other Ramifications

As addressed in a previous post, schools should consider the interplay between governmental immunity and the sports they offer.  EO 2020-176 explicitly states that “Sports organizers should follow the guidance of the Department of Health and Human Services regarding whether and how a sport can be played safely.”  The Order permits all organized sports to proceed and recommends compliance with DHHS.  However, DHHS recommends against playing any contact sports.  The ambiguity and contradiction presented by the Order and the DHHS guidance could open schools up to possible lawsuits in the future, making it imperative that schools, coaches, and teams diligently implement and follow all applicable regulations, guidelines, and recommendations.     

Conclusion

EO 2020-175 takes effect immediately, although gyms and indoor pools will not open until September 9th, and EO 2020-176 takes effect September 4, 2020.  Additionally, EO 2020-177 extended the state of emergency to October 1, 2020.  The state of emergency declared in EO 2020-165 was set to expire on September 4, 2020.  For assistance regarding any issues presented by the Orders, contact Nikole Canute, Scott Dwyer, or Nate Wolf.