Michigan adjusted its day-old epidemic order Tuesday to recommend instead of require bars and restaurants to deny entry to customers who refuse to divulge their contact information. 

The clarification was listed as an “FAQ” Tuesday on the state Department of Health and Human Services website after the American Civil Liberties Union of Michigan said it worked with Gov. Gretchen Whitmer’s administration to make changes.

The FAQ guidance combined with the epidemic order, which went into effect Monday, essentially require a restaurant or bar to request the name and phone number of a customer, but only recommend the denial of entry if the customer refuses to comply with the request. 

A failure to request the information would be considered a violation of the epidemic order.

“We raised several recommendations around these areas,” said Bonsitu Kitaba-Gaviglio, deputy legal director for the ACLU of Michigan, noting other changes surrounding data retention and release. “I’m happy that we were able to have that open line of communication.”

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Bartender Hana Lorenz of Whitehall pours a beer at Pints and Quarts restaurant in the Muskegon area. (Photo: Chris duMond, Special to the Detroit News)

The stipulation only applies to restaurants and bars, said Department of Health and Human Services spokeswoman Lynn Sutfin. Personal services, entertainment venues and recreation facilities are still required to deny entry to those who refuse, a requirement that’s “been in effect for months without issue,” she said. 

“It is our hope that the majority of Michiganders will voluntarily comply with this requirement of restaurants and bars by providing this information that will assist with contact tracing if a positive case is connected with the facility,” Sutfin said. 

The epidemic order requiring the contact tracing efforts at bars and restaurants comes as Michigan’s cases and hospitalizations are rising. 

On Wednesday, the state set a new daily record for confirmed COVID-19 cases with 4,101 reported. The state also reported 17 deaths. As of Tuesday, 1,807 people were hospitalized with confirmed cases of the virus. 

Other parts of Tuesday’s FAQ apply to both businesses and restaurants required to collect contact information, including guidance requiring the destruction of the contact information after 28 days, or two COVID-19 incubation periods.

The clarification issued also prohibits a restaurant or business from sharing the collected data with law enforcement, immigration officials or for use for non-public health purposes such as marketing. It should only be shared with and at the request of state or local health officials.

Additionally, the guidance notes that the state health department will only provide the information to law enforcement or immigration officials if it is served with a valid court subpoena.

The ACLU said in a Tuesday statement the guidance “should give people confidence that their personal information will be kept private and used for the very limited purpose of stemming the spread of COVID-19. ” 

Michigan restaurants are thankful for the additional guidance, said Justin Winslow, president and CEO for the Michigan Restaurant and Lodging Association. 

But he still expressed concern about the shadow the order cast over restaurants and bars, which have been the source of fewer coronavirus outbreaks in Michigan compared with long-term care facilities, social gatherings or schools. 

“The concept of incentivizing restaurants from the start would have helped,” said Winslow. “That kind of public and private partnership would have been well received and maybe still could be.”

As of Oct. 29, restaurants accounted for 7% of Michigan’s new outbreaks and bars accounted for 2%. An outbreak is defined as two or more COVID-19 cases among people who are from different households but may have shared exposure.

In May, Washington state Gov. Jay Inslee retracted a requirement mandating restaurants collect customer contact information after widespread uproar over the decision, including from the American Civil Liberties Union of Washington. 

The ACLU said the data gathering was a risk “to people’s fundamental rights to privacy and association,” the Seattle Times reported.

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