Michigan Employers’ Guide to MIOSHA Emergency Rules and COVID-19 Legislation
In the past few months, Michigan businesses have been impacted by rising COVID-19 cases, MIOSHA Emergency Rules, a package of COVID-19 statutes, and MDHHS orders. More business owners and employees are being personally impacted by the virus. COVID-19 found its way into my own home when my husband was exposed at his work this past October and then passed the virus to me. Thankfully, our children never showed any symptoms. However, it would be an understatement to say it was difficult to isolate with a 3- and 6-year-old when both parents are sick. When I finally emerged from our family’s quarantine, it was clear that COVID-19 fatigue is more than just a symptom of the virus. To provide some clarity in all of the COVID-19 chaos, I have summarized some of the most recent changes and requirements for employers:
MIOSHA Emergency Rules: On Oct. 14, the Michigan Occupational Safety and Health Administration (MIOSHA) issued emergency rules related to COVID-19, to
remain in effect for at least six months (through April 14, 2021). These rules require employers to:
• Conduct exposure determinations for all job tasks and procedures
• Prepare a COVID-19 preparedness and response plan with specific components
• Implement basic infection prevention measures (including a policy prohibiting in-person work to the extent work activities can feasibly be completed remotely)
• Carry out employee health surveillance (including daily screenings)
• Implement workplace controls
• Provide training
• Maintain required records MIOSHA issued FAQs to help explain some of the requirements. Employers can find the FAQs at www.michigan.gov
Among other subjects, the FAQs clarify that employers are required to keep records of the daily screenings of all employees and visitors to the workplace. At the very least, employers must keep a log containing the names of the individuals, date, and a pass/fail indicator. Because the log may reveal confidential medical information depending on its level of detail, it should be kept confidential and shared only with those who have a legitimate need to know.
Additionally, the FAQs address the requirement to conduct a remote work feasibility analysis. This requirement has been a source of contention for many employers as the emergency rules are vague on the subject and employers fear it requires 100% remote work, which may not be sustainable for their businesses. The FAQs indicate: “It is essential that businesses have a thoughtful, reasoned policy for why work that is completed in person cannot feasibly be completed remotely ... MIOSHA will not focus on evaluating the business’ judgment of feasibility, except for cases of obvious misapplication.”
The Michigan COVID-19 Workplace Safety Director echoed this approach in a live Q&A with employers on Nov. 16, stating that MIOSHA will give “deference” to the employer’s determination of feasibility when supported by a reasoned policy.
Thus, employers should evaluate each position and determine whether remote work is feasible. Some positions may require in-person work if such physical presence is necessary to:
• Facilitate the remote work of others
• Access certain equipment, networks, and/or data that cannot be sufficiently and securely accessed from home
• Maintain the security and value of the employers’ assets
• Efficiently and reliably respond to time-sensitive business and/or customer needs
• And/or meet other operational demands, including financial sustainability
No one factor should be determinative; the totality of the circumstances should be considered.
Employers should work with their legal counsel to develop a policy that explains how the remote work feasibility analysis for job tasks and/or positions is conducted and designates which
positions and duties must be performed in-person, via a hybrid arrangement, or fully remote. The policy should be a part of the employer’s COVID-19 preparedness and response plan.
Additionally, the policy should reserve the right of the employer to modify the designations to comply with any subsequent federal, state, or local governmental orders and directives, including but not limited to MDHHS Epidemic Orders, which are now being used in place of Gov. Gretchen Whitmer’s Executive Orders.
COVID-19 Legislation Package:
Four new Michigan statutes designed to support Michigan businesses dealing with COVID-19 went into effect on Oct. 22. House Bill 6030 provides immunity to employers from COVID-19 claims provided the employers comply with all applicable laws, regulations, orders, and requirements relating to COVID-19 precautions.
Thus, if employers are complying with CDC guidance and all federal, state, and local required mitigation measures, they are generally protected from employee tort and personal injury lawsuits if employees are potentially or actually exposed to COVID-19, or otherwise damaged as a
Lindsay Raymond specializes in employment law, represents employers in all aspects of employment-related matters, and defends employers in employment litigation matters. She can be reached at (231) 714-0161 or lraymond@darlawyers.com.
This article was featured in the December 2020 issue of the Traverse City Business News.