By A. Scott Hecker, Brent I. Clark, and Patrick D. Joyce

Seyfarth Synopsis: Michigan OSHA (MIOSHA) enacted COVID-19 emergency rules on October 14, 2020, less than two weeks after the Michigan Supreme Court’s October 2 ruling invalidated many of Governor Gretchen Whitmer’s COVID-19 executive orders.

At the direction of Governor Whitmer, MIOSHA codified the Governor’s prior executive orders with its emergency rules. A review of the MIOSHA emergency rules reveals significant similarities between the rules and the Governor’s invalidated orders. Also in response to the Michigan Supreme Court’s ruling, Michigan’s Department of Health and Human Services released an emergency order imposing restrictions on indoor and outdoor gatherings, setting capacity limits for gatherings in certain business sectors and other locations, limiting gatherings of employees in the workplace, and requiring face coverings at gatherings under certain circumstances.

MIOSHA’s emergency rules apply to all employers covered by Michigan’s OSH Act. Of note, the rules define close contact as being within six feet of an infected person for at least 15 minutes. These rules became effective before the CDC updated its definition of close contact, which we have previously blogged about here. Employers should consider how Michigan and other jurisdictions may adjust their approach to recording and tracing close contacts following the CDC revisions.

Key requirements of the emergency rule for all employers are:

  • prepare a written COVID-19 preparedness and response plan consistent with CDC and OSHA guidance. The plan needs to include exposure determinations, categorize jobs into risk levels (i.e., lower exposure, medium exposure, high exposure, and very high exposure), and detail measures to prevent employee exposure.  Employees and their representatives must have access to their employer’s plan.
  • implement basic infection prevention measures, including promoting frequent and thorough handwashing; requiring sick workers not to report to work or to work in an isolated location; prohibiting employees from sharing high-touch items; increasing cleaning and disinfection; and encouraging remote work, where feasible.
  • conduct daily screenings of employees and contractors, including a questionnaire covering whether workers have experienced symptoms and whether they have had exposure to a suspected or confirmed case of COVID-19. Conduct temperature checks, if possible.
  • notify the local public health department of an employee’s, visitor’s, or customer’s known case of COVID-19.
  • notify, within 24 hours, coworkers, contractors, or suppliers who may have come into contact with the known case.
  • designate COVID-19 safety coordinators.
  • post appropriate signage encouraging staying away from work when sick, cough and sneeze etiquette, and proper hand hygiene.
  • provide face coverings at no cost to employees and requiring face coverings to be worn when social distance cannot be consistently maintained and when in shared spaces.
  • provide employees current and updated training on SARS-CoV-2 and COVID-19 in languages common to the employee population, including workplace infection-control practices, the proper use of PPE, steps employees must take to notify the business of symptoms or a known or confirmed COVID-19 diagnosis, and how to report unsafe working conditions.

Employers must maintain records of COVID-19 training; screening for each employee or visitor entering the workplace; and notifications required, e.g., to local departments of public health

Beyond these requirements for all employers, the rules include industry-specific mandates for certain industries, including construction; manufacturing; retail, libraries, and museums; restaurants and bars; health care; in-home services; personal-care services; public accommodations; sports and exercise facilities; meat and poultry processing; and casinos.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.