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:
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.
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.
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)
Infection Prevention Measures (Rule 5)
Health Surveillance (Rule 6)
Workplace Controls (Rule 7)
Personal Protective Equipment (PPE) Requirements (Rule 8)
Training Requirements (Rule 10)
Recordkeeping Requirements (Rule 11)
Additional requirements apply to employers in the following industries:
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.
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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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:
Stephanie L. Sweitzer
Jason S. Mills