As a result of the Michigan Supreme Court’s recent orders, Governor Gretchen Whitmer’s executive orders relating to COVID-19 and workplace safety have been invalidated. This has resulted in considerable confusion for employers and workers as to what their rights and obligations are.
On October 14, 2020, the Governor announced that “The Michigan Occupational Safety and Health Administration (MIOSHA) . . . is one of the first state OSHA programs to promulgate rules which clarify the safety requirements employers must follow to protect their employees from COVID-19.” The Emergency Rules issued by MIOSHA, titled “Emergency Rules Coronavirus Disease 2019 (COVID-19)” take effect when filed with the Secretary of State and will remain in effect for six months.
Many of the requirements of the Emergency Rules will be familiar to most Michigan businesses as they, not surprisingly, track the requirements contained in the Governor’s now rescinded executive orders. Of particular note, the Emergency Rules require that all employers:
- Develop and implement a written COVID-19 preparedness and response plan, consistent with the current guidance for COVID-19 from the CDC and recommendations developed by OSHA. The plan must include the employee exposure determination and detail the measures the employer will implement to prevent employee exposure.
- Promote frequent hand washing and provide hand sanitizer with at least 60% alcohol when soap and water is not immediately available.
- Conduct daily “self-screening” for all employees including at a minimum a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
- Not allow employees with known or suspected cases of COVID-19 to report to work, or send employees with known or suspected cases home, or make them work alone or at a “remote location” (for example their home) as their health allows.
- Allow employees with known or suspected COVID-19 to return to the workplace only after they are no longer infectious, according to the guidelines from the CDC.
- Immediately report known cases of COVID-19 to the local health department and within 24 hours notify co-workers “who may have come into contact with the person.”
- Provide non-medical grade face coverings to all employees and require their use when social distancing cannot be maintained or in shared spaces.
- Provide training for all employees on workplace infection-control practices, the proper use of PPE, steps to notify the employer of any symptoms or suspected or confirmed cases, and how to report unsafe working conditions.
- Keep records of the training, screening and required notifications for one year from the date the record is generated.
The Emergency Rules also state in Rule 5(8) that all employers “shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”
The Emergency Rules also contain specific requirements for industries including construction; manufacturing; retail, libraries and museums; restaurants and bars; health care; in-home services; personal-care services; public accommodations such as sports and entertainment facilities and theaters; sports and exercise facilities; meat and poultry processing; and casinos.
You can find the Emergency Rules here.
If you have any questions, please feel free to reach out to any member of Warner’s Labor and Employment Practice Group.