MIOSHA announced today that it has extended its Emergency Rules on Coronavirus Disease 2019 (COVID‑19) (“Emergency Rules”). Initially, the Emergency Rules were scheduled to expire today, April 14, 2021. As a result of the extension, however, the Emergency Rules will now remain in effect until October 14, 2021, at the latest. Notably, MIOSHA extended the Emergency Rules without any modifications. This means that for now, Michigan employers are required to continue:
- Conducting daily entry self-screening COVID‑19 protocols for all employees or contractors entering the workplace.
- Prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.
- Enforcing the other infection control measures included in the Emergency Rules (see our October 15 eAlert here for additional infection control measures required by the Emergency Rules).
It’s important to mention, however, that in its press release today, MIOSHA noted that the Emergency Rules can be modified or withdrawn at any time in response to changes in COVID‑19 spread.
Although the Emergency Rules remain unchanged for now, yesterday MIOSHA released a draft proposal of permanent rules that will establish requirements to mitigate and control the spread of COVID‑19 in the workplace (“Proposed Rules”). The Proposed Rules are the result of a Standard Advisory Committee that has met regularly over the past month. The Proposed Rules modify the Emergency Rules in a number of ways, which include the following:
- Remote Work. Perhaps most notably, the Proposed Rules would provide employers more flexibility in determining whether employees can work remotely. Specifically, employers would be required to “create a policy promoting remote work for employees to the extent that their work activities can feasibly (e.g., technical, economical, performance) be completed remotely.”
- Streamlined Definitions of Commonly Used Terms. The Proposed Rules would revise the definitions of “close contact” and “COVID‑19” to mirror the latest definitions and symptoms provided by the CDC, respectively. Moreover, “SARS-CoV-2” would be defined as both the novel coronavirus and any related mutations of the virus.
- Revised Notification Requirements. Under the Proposed Rules, employers would no longer be required to provide notice of a known COVID‑19 case to individuals who were merely in the general vicinity of the case. Instead, employers would only be required to notify close contacts of the confirmed case. In addition, employers would no longer be required to immediately notify the local public health department in the event of a confirmed case. Finally, the Proposed Rules would add contractors to the list of individuals who would trigger an employer’s notification requirements if they tested positive for COVID‑19.
- Potentially More Stringent Return-to-Work Criteria. The Proposed Rules would authorize state and local public health authorities to require employees with COVID‑19 to remain away from work longer than any isolation period recommended by the CDC if they deem it necessary. Specifically, the Proposed Rules permit employees with a confirmed case of COVID‑19 to return to work after they are no longer infectious according to the latest CDC guidelines “or state or local public health authorities, whichever is more stringent.”
- Face Coverings. Although employers would be required to mandate that employees wear face coverings under the circumstances identified in the Emergency Rules, the Proposed Rules expressly state that such coverings are not considered Personal Protective Equipment. Accordingly, employers would most likely not be required to train employees on the proper way to wear, care for and dispose of face coverings.
- Industry-Specific Changes. Perhaps the most notable industry-specific modification is that manufacturing facilities would no longer be required to create dedicated entry points for daily health screenings nor would such facilities be required to construct barriers that prevent employees from bypassing screening.
- Shortened Recordkeeping Requirements. Employers’ recordkeeping requirements under the Proposed Rules would be shortened to six months as opposed to the one-year requirement in effect under the Emergency Rules.
- Sunset Provision. Finally, MIOSHA would be required to examine the continued need for the Proposed Rules within 21 days of the expiration or rescission of any remaining emergency order issued under the Michigan Public Health Code and the absence of a state of emergency related to COVID‑19 issued by Governor Whitmer.
The Proposed Rules have quite some time before they have the force of law. Absent exigent circumstances, the Michigan Occupational Safety and Health Act requires MIOSHA to comply with Michigan’s Administrative Procedures Act of 1969 (“APA”) to promulgate a safety and health standard. The APA requires agencies such as MIOSHA to follow various time-extensive steps through the rulemaking process, which includes, without limitation, holding a public hearing and offering interested parties the opportunity to offer their comments on a proposed rule. Warner’s Labor and Employment Practice Group is monitoring MIOSHA’s rulemaking process concerning the Proposed Rules as new information becomes available. In the meantime, if you have questions about the Emergency Rules, the Proposed Rules or any other issue involving COVID‑19 as it relates to your operations, please contact any member of Warner’s Labor and Employment Practice Group.
