By Conn Maciel Carey’s COVID-19 Task Force

Reacting quickly to the Michigan Supreme Court’s decision striking down a series of Governor Gretchen Whitmer’s COVID-19 Executive Orders, Michigan OSHA issued a series of COVID-19 emergency rules on October 14 to fill the void—many of which mirror the requirements imposed on employers by the Governor’s prior Executive Orders.  When Gov Whitmer signed the Emergency Rules Order, Michigan became only the second state in the country with a set of enforceable, COVID-19 specific regulation.

MIOSHA’s new COVID-19 emergency rules, which became effective immediately and which will remain in effect for 6 months, require employers to:

• conduct workplace risk assessments for COVID-19 exposures;
• develop a written exposure control plan; and
• adopt a series of workplace protections.

“While most Michigan job providers are doing their part to slow the spread of COVID-19, these rules provide them with clarity regarding the necessary requirements to keep their workplaces safe and their employees healthy,” said Gov. Whitmer. “I will continue to work around the clock with my partners in labor and business to ensure protections for every Michigan worker.”

Because MIOSHA’s rule uses pretty vague language and is lean on detail, the agency has already begun to issue FAQs explaining what some of the provisions of the rule mean.  Here is the first batch of FAQs:

• Executive Rule 11(1) requires employers to maintain a record of the daily screening. What daily screening records must the employer maintain?
• Executive Rule 11(1) requires employers to maintain a record of the daily screening. What is an acceptable “record”?
• Executive Rule 5(8) says: The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely. What type of policy is required?
• Executive Rule 7(6) requires face coverings in shared spaces, including during in-person meetings and in restrooms and hallways. When is a space considered a “shared space”?
• Is an office area containing employees in cubicle-styled configurations a “shared space”? Are employees required to wear face coverings while inside their cubicle?
• Who has to wear the non-medical grade face covering required by the Executive Rules and who has to provide them?

While MIOSHA had already been aggressively citing employers under the General Duty Clause over the past few months, most of those citation directly referenced Gov. Whitmer’s now-invalidated COVID-19 Executive Orders. Michigan employers can now be cited for violating these specific regulations.  At the same time, however, Republican legislators have sent a series of bills to Governor Whitmer that include liability protections for employers that comply with MI OSHA guidelines, making compliance with these rules all the more important.

Employers with operations in Michigan wishing to avoid citations should take the following 5 steps  as soon as practically possible: (1) Assess; (2) Plan; (3) Protect; (4) train; and (5) document.

STEP 1:  Conduct Workplace Assessment & Make Exposure Determinations (ASSESS)

Employers must evaluate Continue reading →