Following the lead of Governor Gretchen Whitmer and the Michigan Department of Health and Human Services (MDHHS), the Michigan Occupational Safety and Health Administration (MIOSHA) announced new Emergency Rules this morning relating to COVID‑19. Under the new Emergency Rules, most Michigan employers are no longer required to maintain a COVID‑19 preparedness and response plan or ensure that their employees abide by the various workplace safety protocols that they have been following since last year. The discontinued protocols include pre-entry screenings and associated recordkeeping, more frequent sanitation and cleaning, and mask-wearing and social distancing requirements for non-vaccinated individuals. The new Emergency Rules take effect when filed with the Secretary of State. Based on a press release issued by Governor Whitmer’s officer earlier this morning, it appears that the Emergency Rules will be filed with the Secretary of State today.
For certain health care employers, MIOSHA’s new Emergency Rules adopt federal OSHA's Emergency Temporary Standards (ETS). The ETS sets forth a comprehensive set of safety and health protocols that covered health care employers must implement and follow. Additional information about the ETS can be found in our eAlert from June 11, 2021. For Michigan employers not subject to the OSHA ETS, they will now again be measured against MIOSHA’s "general duty clause" which requires them to provide a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.
Although the revocation of the Emergency Rules is likely welcome news for many Michigan employers, those employers may wish to consider whether to continue to maintain a preparedness and response plan in a modified form and to continue to follow some of the protocols that have been in place during the pandemic. Doing so may minimize the risk of a general duty clause violation.
Employers should consider developing ongoing workplace procedures for: 1) minimizing the risk of exposure to those with COVID‑19 or those displaying principal COVID‑19 symptoms; 2) responding to confirmed cases of COVID‑19; 3) notification of close contacts; 4) general cleaning procedures and cleaning in the event of a positive case; and 5) employee training. Additional guidance for employers is available from OSHA and the Centers for Disease Control. In addition to considering next steps, Michigan employers should continue to retain all screening, training and notification records compiled under the former Emergency Rules for the full six months provided for in those Rules.
Something that has not changed for Michigan employers is the obligation to allow employees to quarantine or self-isolate due to various COVID‑19-related situations without discipline, discharge or retaliation. Under Public Act 2020-238 as amended by Public Act 2020-339, employees who are COVID‑19 positive or who are experiencing principal symptoms, as well as unvaccinated non-essential workers who have close contact with another person who is COVID‑19 positive, must isolate or quarantine until released to return to work by a health professional or until certain time periods have lapsed and they are symptom free. This law may be repealed or modified as the pandemic further recedes, but for now, the isolation/quarantine and non-retaliation provisions remain in effect.
If you have questions or need assistance relating to the above developments, or if you need assistance in modifying your preparedness and response plan, please contact any member of Warner’s Labor and Employment Practice Group.