On May 24, 2021, Michigan Governor Gretchen Whitmer announced important changes to the Michigan Occupational Safety and Health Administration’s (MIOSHA) emergency COVID-19 rules, “Emergency Rules for Coronavirus Disease 2019.” Governor Whitmer also announced that the draft permanent MIOSHA COVID-19 rules have been rescinded in their entirety, and the public hearing to discuss those rules scheduled for May 26, 2021, has been canceled.
The updated emergency rules, which take effect on May 24, 2021, and expire on October 14, 2021, supersede all of the COVID-19 rules that MIOSHA previously had in place.
The updated rules introduce a number of changes—perhaps most importantly, the removal of the controversial remote work policy rule, which required Michigan employers to create policies mandating that employees work remotely where feasible. Other important changes include the following:
- The new rules eliminate industry-specific rules.
- The new rules remove the requirement to temperature check employees if possible. The daily entry screening requirement remains in effect.
- While employers must still “notify any co-workers, contractors, or suppliers who may have come into contact with the person with a known case of COVID-19,” the employer need not notify local public health authorities.
- The new rules shorten the recordkeeping requirements from 1 year to “6 months from time of generation.”
The new rules made additional major changes regarding fully-vaccinated employees. The updated emergency rules provide that fully-vaccinated individuals need not be socially distanced or wear masks (unless “in the healthcare setting where patients may be present and when using airplane or public transportation if required by the latest CDC [U.S. Centers for Disease Control and Prevention] guidance”). According to the emergency rules, should an employer choose to permit fully-vaccinated employees to pass on social distancing and mask requirements, the employer must do so in a “manner deemed effective for the place of employment,” which “may include:
- Keeping records of whether employees are fully vaccinated persons …
- Posting signs in the work area reminding employees that are not fully vaccinated to wear face coverings and maintain appropriate distancing.
- Allowing or requiring remote work.”
Alternatively, employers may continue requiring face coverings and social distancing for all employees regardless of vaccination status.
MIOSHA also incorporated a number of the rules, which had been in place since October 2020, into its updated emergency rules, including a few particularly cumbersome requirements. Among these is a rule requiring employers to continue to “conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19.” In addition, the new rules require employers to continue to:
- “develop and implement a written COVID-19 preparedness and response plan.”
- Encourage infection control measures like frequent hand washing.
- Isolate sick employees or ask them to work remotely when sick.
- Follow CDC guidance for cleaning and disinfection.
- Designate “safety coordinators to implement, monitor, and report on the COVID-19 control strategies developed under these rules.”
- Require social distancing of at least 6 feet for unvaccinated employees.
- Require mask use for unvaccinated employees who cannot consistently maintain 6 feet of separation indoors.
- Provide COVID-19 training to employees.
- Maintain a record of COVID-19 training, daily health screenings, and notifications of possible workplace exposures. As mentioned above, records need only be retained for 6 months rather than 1 year from the date the record was generated.
Although no additional changes appear likely in the immediate future, MIOSHA can rescind or change any part of the emergency rules at any time if it deems necessary. Ogletree Deakins will continue to monitor Michigan legislative initiatives, state agency rulemaking, and local public health department activity for further developments. In addition, Ogletree Deakins will report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.