Michigan Adopts Emergency Temporary Rules to Address COVID-19 in the Workplace

Effective immediately, Michigan will require employers to make coronavirus (COVID-19) workplace exposure determinations for all job tasks and procedures, prepare written preparedness and response plans, and implement a series of workplace protections.

Michigan recently became the second state in the nation (following the Commonwealth of Virginia) to enact enforceable workplace safety standards that address the risks of COVID-19. To date, the federal Occupational Health and Safety Administration (OSHA) has not adopted any new nationwide standards related to COVID-19 that could preempt these state requirements.

After the Michigan Supreme Court struck down Governor Gretchen Whitmer’s executive orders governing COVID-19 mitigation, the Michigan Occupational Safety and Health Administration (MIOSHA) declared a state of emergency and promulgated 11 emergency rules that establish requirements to control, prevent, and mitigate the spread of the COVID-19 pandemic.

MIOSHA’s new COVID-19 emergency rules became effective on October 14, 2020 and will remain in effect for six months. The rules apply to all employers covered by the Michigan Occupational Safety and Health Act of 1974 and generally require employers to do the following:

• Make workplace exposure determinations for all job tasks and procedures
• Prepare written COVID-19 preparedness and response plans
• Implement a series of workplace protections

Michigan employers should ensure that they familiarize themselves with and develop written protocols to comply with the new emergency rules, while continuing to monitor and adhere to related guidance from OSHA, the Centers for Disease Control and Prevention (CDC), and other federal, state, and local officials.

ASSESSING RISK LEVEL AND ACTIONS TO BE TAKEN (RULE 3)

The emergency rules impose different requirements on employers depending on the exposure risk levels that their employees may face, including “very high,” “high,” “medium,” and “lower” risk levels. The rules contemplate that these risk levels are job task and procedure specific, such that the same employee could theoretically be classified as both “high” and “lower,” depending on the nature of the work performed throughout the workday.

Accordingly, employers will need to carefully evaluate the job duties of their workforce to develop proper classifications. Although the standard provides some clear indicators—for instance, “high-volume retail settings” generally fall within the “medium” classification—for many employers, this will be a context-specific assessment that may vary from one worksite to another and possibly from one task to another.

GENERAL REQUIREMENTS FOR ALL MICHIGAN EMPLOYERS

In addition to this risk-based assessment, the emergency rules impose baseline requirements for all Michigan employers. These fall into several categories, which are generally summarized below.

Written Preparedness and Response Plan (Rule 4)

• Employers must develop and implement written COVID-19 preparedness and response plans, consistent with the current guidance for COVID-19 from the CDC and recommendations in federal OSHA’s Guidance on Preparing Workplaces for COVID-19.
• The plan must include the employee exposure determination and detail the measures the employer will implement to prevent employee exposure (including engineering controls, administrative controls, basic infection prevention measures, personal protective equipment, health surveillance, and training).
• Employers must make their plans readily available to employees and their representatives, whether via website or internal network or by hard copy.

Infection Prevention Measures (Rule 5)

• Employers must establish procedures on hygiene and cleanliness. These include, for example, frequent and thorough hand washing as well as workplace cleaning and disinfection.
• Employers must also establish enhanced cleaning procedures following a suspected or confirmed case of COVID-19 in the workplace.
• Employers must create a policy prohibiting in-person work that “feasibly” can be completed remotely.

Health Surveillance (Rule 6)

• Employers must conduct a daily entry self-screening protocol for all employees or contractors entering the workplace. At minimum, this must include a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19. The screen should be completed “together with, if possible, a temperature screening.”
• Employers must instruct employees to report any signs and symptoms of COVID-19 to their employers.
• Employers must develop procedures for how to respond to sick employees, including isolation and return to work requirements.
• Employers must make notifications when they learn of “an employee, visitor, or customer with a known case of COVID-19,” including (1) immediately notifying the local public health department, and (2) within 24 hours of learning of the known case, notifying any co-workers, contractors, or suppliers who may have come into contact with the person with a known case of COVID-19.

Workplace Controls (Rule 7)

• Employers must designate worksite COVID-19 safety coordinators who “must remain on-site at all times when employees are on site.”
• Employers must use posters that “encourage staying away from the workplace when sick, cough and sneeze etiquette, and proper hand hygiene practice.”
• Employers must enforce six-foot social distancing “to the maximum extent possible” and reduce congestion through ground markings, signs, physical barriers, etc.
• Employers must “provide non-medical grade face coverings to their employees at no cost to the employee.”
• Employers must “require face coverings be worn when employees cannot consistently maintain 6 feet of separation from other individuals and in shared spaces, including during in-person meetings and in restrooms and hallways,” and also must “consider face shields when employees cannot consistently maintain 3 feet of separation from other individuals in the workplace.” (Emphasis added.)

Personal Protective Equipment (PPE) Requirements (Rule 8)

• Employers must provide PPE, including respirators if necessary, depending on the exposure risk associated with the job.
• Employers must properly fit, use, inspect, maintain, clean, store, etc. the PPE.
• Specific PPE requirements apply to workplaces that provide medical treatment or housing to known or suspected cases of COVID-19.

Training Requirements (Rule 10)

• Employers must provide training to employees on SARS-CoV-2, COVID-19, and many of the topics covered by the other rules.
• Updated training must be provided if new information becomes available about COVID-19 or an employer’s plan changes.

Recordkeeping Requirements (Rule 11)

• Employers must maintain the following records for one year: COVID-19 employee training; “a record of screening for each employee or visitor”; and records of required notifications.

ADDITIONAL INDUSTRY-SPECIFIC REQUIREMENTS (RULE 9)

Additional requirements apply to employers in the following industries:

• Construction
• Manufacturing
• Retail, libraries, and museums
• Restaurants and bars
• Healthcare
• In-home services
• Personal care services
• Public accommodations
• Sports and exercise facilities
• Meat and poultry processing
• Casinos

WHAT SHOULD MICHIGAN EMPLOYERS DO NOW?

Employers in Michigan should take immediate steps to comply with these new workplace safety standards. Michigan businesses should review the rules in full, evaluate potential COVID-19 exposure risks, and develop written plans and trainings.

Even beyond Michigan’s borders, the emergency rules closely follow existing guidance from the federal OSHA and the CDC. And savvy employers outside of Michigan can consider implementing these measures now, as more and more states look to pass similar COVID-19 standards. For example, Oregon is currently soliciting comments on a temporary OSHA COVID-19 rule, and expects to finalize and adopt the rule in early November 2020. California is also exploring a rule, with a proposed standard expected to be under consideration by the California Occupational Safety and Health Standards Board by late November 2020.

RETURN TO WORK RESOURCES

We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.

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CONTACTS

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Chicago
Stephanie L. Sweitzer

Los Angeles
Jason S. Mills

Washington DC
Sharon P. Masling
Jonathan L. Snare