Michigan recently joined the growing list of states creating temporary emergency rules that require employers to take certain steps to protect their workforces against COVID-19. The rules by the Michigan Occupational Safety and Health Administration (MIOSH) will remain in effect for at least six months starting October 14, 2020.

The MIOSH rules make mandatory many of the preventive steps already recommended by the federal Centers for Disease Control (CDC) and federal Occupational Safety and Health Administration (OSHA). But they come at the same time as another Michigan law that promises protection from lawsuits for employers who comply with all federal, state, and local laws and rules about COVID-19.

What the new MIOSH COVID-19 rules require

At a high level, some of the Michigan requirements most likely to catch employers’ attention include mandates to:

  • Create a written COVID-19 plan.
  • Designate one or more COVID-19 safety coordinators to be on site.
  • Require employees to work remotely unless infeasible.
  • Require wearing masks in shared spaces and where social distancing is difficult.

In general, the MIOSH rules require employers to:

  • Develop a written COVID-19 preparedness & response plan. The plan must assess what exposures are in the workplace and follow guidance by the CDC and federal OSHA. It must be made available to employees and their representatives.
  • Determine the risk category for each job task or procedure. Risk categories are low, medium, high, or very high based on the amount of close contact with co-workers and the public; the existence of ongoing community transmission associated with the contacts; and whether the job or task requires close contact with patients, specimens, or deceased persons known or suspected to be infected with COVID-19.
  • Identify prevention control measures. Employers should identify and implement specific procedures to prevent possible workplace exposures identified, including engineering and administrative controls, hygiene and disinfection, personal protective equipment (PPE), surveillance and screening, and training as appropriate.
  • Keep sick workers away. Workers who are sick should not come to work or must work alone at an isolated location.
  • Require employees to work remotely if feasible. “The employer shall create a policy prohibiting in-person work for employees to the extent
    that their work activities can feasibly be completed remotely.” If allowing employees to work in person, employers are “obligated to demonstrate infeasibility of remote work.”
  • Conduct health surveillance. Employers must have employees and contractors submit to daily screening or self-screening prior to entering the workplace. This must include a questionnaire about symptoms and exposure to people with possible COVID-19 and ideally includes temperature screening.
  • Notify about exposures. Employers must report known or suspected cases of COVID-19 of a visitor, employee, or customer to the health department immediately and notify exposed workers and suppliers within 24 hours of notice to the employer of a known case.
  • Follow return-to-work criteria. Employees with known or suspected cases of COVID-19 are prohibited from returning to work unless the employees meet CDC return to work guidelines and are released from any quarantine or isolations orders imposed by the local public health department.
  • Designate a worksite COVID-19 safety coordinator. Each workplace needs one or more coordinators to implement, monitor, and report on COVID-19 control strategies. The designated coordinator, which can be an on-site employee, must be on site at all times when employees are present.
  • Implement workplace controls. Specifically, the MIOSH rule requires —
    • COVID-19 posters in the workplace in appropriate languages,
    • Keeping people socially distanced and at least six feet apart,
    • Providing employees with non-medical grade face coverings at no cost, and
    • Requiring face coverings whenever employees cannot consistently maintain six feet of social distance (and consider requiring face shields, too, when they cannot consistently maintain at least three feet), and in shared spaces, including in-person meetings, restrooms, and hallways.
  • Provide and properly use PPE. Employers must provide employees with PPE appropriate to the exposure risk associated with the job or task (and ensuring proper fit, usage, maintenance, storage, cleaning, etc. under CDC and OSHA guidelines). Where workplaces provide medical treatment or housing to known or suspected COVID-19 patients, the rules specify more stringent PPE.
  • Train employees. Employers must train employees on a number of particular topics relating to COVID-19, infection control, and reporting symptoms/infections or unsafe conditions.
  • Maintain records. Employers must keep records for at least one year regarding all employee COVID-19 training, “a record of screening” for each person entering the workplace (can record “pass/fail“), and “a record of each notification” of exposure.
  • Industry-specific rules. Eleven industry-sectors are identified in the MIOSH rules with additional mandates specific to employers in those industries. The industries with additional rules are: construction, manufacturing, retail/libraries/museums, restaurants and bars, health care, in-home services, personal-care services, public accommodations, sports and exercise facilities, meat and poultry processing, and casinos.

The new rules apply to all Michigan employers (other than mines and domestic employers), and they require employers to follow current CDC guidelines. For that reason, at least one item in the MIOSH rules has already been superseded by CDC updates: the definition of when an employee is in “close contact” with another person. As we explained in a recent blog post, “close contact” now means being within six feet of a contagious person for “a cumulative total of 15 minutes or more over a 24-hour period.”

Liability shield for employers who comply

Shortly after promulgating the MIOSH rules, Michigan Governor Gretchen Whitmer signed a group of COVID-19 related laws, including the COVID-19 Response and Reopening, Liability and Reassurance Act, which provides immunity from certain tort liability arising from claims related to exposure, potential exposure, or conduct intended to reduce the transmission of COVID-19 in the workplace. (It does not provide immunity from worker’s comp claims or government enforcement actions. In order to be protected from liability, individuals and businesses must comply with all federal, state and local laws, rules, regulations, executive orders, and agency orders related to COVID-19.

Need help reviewing your policies for compliance?

The new MIOSH rules are detailed and mandatory. Responsible employers already have had COVID-19 response plans in plans but will want to review their policies for compliance with the new requirements (plus changing local rules and orders).

We can help. Husch Blackwell’s easy-to-use COVID-19 & Return-to-Work Policy Generator can build a policy customized to your workplaces. Our team can work with your company to ensure that your workplace is safe and compliant. For more information about the MIOSH rules, a COVID-19 policy, or your workplace rules, please contact Avi Meyerstein, Jenna Brofsky, or your Husch Blackwell attorney.

Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.