On May 21, 2021, the director of the Michigan Department of Labor and Economic Opportunity updated its COVID-19 emergency rules, promulgated pursuant to MCL 24.248, to align with the most recent Centers for Disease Control (CDC) guidance and Michigan Department of Health and Human Services (MDHHS) epidemic order. The amended rules are still set to remain in effect until October 14, 2021.
The updated emergency rules apply to all employers covered by the Michigan Occupational Safety and Health Administration (MIOSHA) and “establish requirements for employers to control, prevent, and mitigate the spread of coronavirus disease 2019 (COVID-19) among employees.” Significantly, the updated rules remove the requirement that employers create a policy “prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” Here is a rundown of several other notable changes:
- The updated rules no longer require an exposure determination for all employers. (The previous rules required that the employer evaluate routine and reasonably anticipated tasks and procedures to determine whether there was actual or reasonably anticipated employee exposure to COVID-19.)
- The updated rules still require all employers to develop a COVID-19 preparedness and response plan, though the plan need not require the previously required exposure determination.
- Like the previous rules, the updated rules outline basic infection prevention measures for all employers, though they are less stringent. For example, the updated rules do not prohibit sharing desks and work tools.
- The updated rules require health surveillance, including daily entry self-screening protocols for all employees or contractors entering the workplace but do not require a temperature screening (which was required, if possible, under the prior rules), and do not require an employer to notify the local public health department of potential COVID-19 contacts at work. Instead, the employer must, within 24 hours, notify “any co-workers, contractors, or suppliers who may have come into contact with the person with a known case of COVID-19.” The updated rules require the employer to allow employees with known COVID-19 cases to return to work only after they are no longer infectious according to the latest CDC guidelines.
- The updated rules require employers “ensure that any employees, except fully vaccinated persons, remain at least 6 feet from one another to the maximum extent feasible while on worksite premises.” Employers must still provide nonmedical grade face coverings to their employees at no cost, but they are not required to provide such face coverings to fully vaccinated persons. Only nonvaccinated employees are required to wear face coverings when they cannot maintain 6 feet of separation from other individuals. However, “fully vaccinated persons must continue to wear face coverings when in the healthcare setting where patients may be present and when using airplane or public transportation if required by the latest CDC guidance.” Employers can show compliance with these requirements by keeping records of whether employees are fully vaccinated, posting signs in the work area reminding employees who are not vaccinated to wear face coverings and maintain distancing, allowing or requiring remote work, or requiring face coverings and social distancing regardless of vaccination status.
- The updated rules include the same COVID-19 training requirements for all employers, with the additional requirement that the training cover information on vaccinations available for COVID-19. Employers must keep a record of all COVID-19 employee training and health screening protocols. Employers must also “maintain a record of health screening for each non-vaccinated employee or contractor entering the workplace,” as well as other specifically outlined records. These records must be maintained for six months (as opposed to one year under the previous emergency rules).
- The industry-specific workplace requirements and guidelines outlined in the prior emergency rules are no longer included.
MIOSHA has enforced these rules throughout the COVID-19 pandemic, issuing a number of citations to employers for violations such as failing to remove potentially infected employees from the workplace, failing to install required barriers, and failure to train. Practitioners are encouraged to watch the MIOSHA, MDHHS, and CDC websites for developments.