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On October 14, 2020, the Michigan Occupational Safety and Health Administration (MiOSHA) issued Emergency Rules requiring employers to take certain actions to address (and prevent!) COVID-19 in the workplace. The Michigan Supreme Court’s decisions regarding the validity of Governor Whitmer’s COVID-19 related Executive Orders impacted the current workplace safety rules and, similarly, safety measures for food-selling establishments and pharmacies. The new MiOSHA Emergency Rules track the language of Executive Order 2020-184 very closely.

COVID-19 PREPAREDNESS AND RESPONSE PLAN

The Emergency Rules still require employers to adopt a COVID-19 Preparedness and Response Plan. The plan must include the employee exposure determination. This type of risk assessment was created by the federal Occupational Safety and Health Administration (OSHA) to help employers assess employees’ risk of COVID-19 exposure based on industry and contact with people who have or may have COVID-19. Under Rule 3, an employer must evaluate and categorize job tasks and procedures performed by employees into one of the following categories: lower exposure risk, medium exposure risk, high exposure risk, and very high exposure risk.

•  Lower exposure risk job tasks and procedures. No contact with people who are known to have or suspected to have been infected with COVID-19. They also do not frequently come within 6 feet of the general public or other coworkers.

o   Examples: those working at home or in certain low-population-density office settings.

• Medium exposure risk job tasks and procedures. These employees frequently come within 6 feet of people who might be infected with COVID-19. However, the people they are exposed to are not known or suspected to be infected with COVID-19. These employees also might frequently come within 6 feet of travelers or the general public.

o   Examples: employees working in schools, high-population-density work environments, or high-volume retail settings.

• High exposure risk job tasks and procedures. These employees are highly likely to come in contact with known or suspected sources of COVID-19.

o   Examples: licensed health care professionals, nursing home employees, law enforcement, or mortuary workers.

• Very high exposure risk job tasks and procedures. These employees are highly likely to come in contact with known or suspected sources of COVID-19 because they perform special medical, postmortem, or laboratory procedures.

o   Examples: health care workers performing intubation on known or suspected COVID-19 patients, laboratory personnel collecting specimen from known or suspected COVID-19 patients, or morgue workers performing autopsies on bodies of people who were known or suspected to have COVID-19 at the time of death.

The COVID-19 Preparedness and Response Plan must also include employee exposure prevention measures the employer will take. These measures can include training, providing personal protective equipment, or performing basic infection prevention measures. Employers must also provide employees with appropriate personal protective equipment based on the exposure risk based on current CDC and OSHA guidance.

WORKPLACE GUIDELINES TO KEEP EMPLOYEES SAFE

To the extent that work that cannot be performed remotely, the employer must follow guidelines to keep employees safe.

• Employee temperatures are not required, but daily self-screening procedures, including a questionnaire, are still required.
• Continue to foster a safe and clean work environment with hand sanitizer, face masks, and disinfectant.
• Require the wearing of masks in shared spaces and whenever it is infeasible to maintain six feet between employees or between employees and members of the public.
• Prohibit employees from using others’ phones, desks, officers or other work equipment when possible.
• Conduct training on infection-control practices, proper use of personal protective equipment, notice regarding COVID-19 symptoms, and reporting unsafe working conditions. Conduct new training if the Preparedness and Response Plan is updated or new information on COVID-19 becomes available.
• Maintain records of workplace training on COVID-19, screening protocols, and notification of symptoms or unsafe work conditions for at least one year.

The rules include industry-specific guidelines similar to those in the Executive Orders for the following industries:

• Construction– Rule 9.1
• Manufacturing– Rule 9.2
• Retail, Libraries, and Museums– Rule 9.3 Notably, the rules do not contain a requirement to have special house for vulnerable clientele.
• Restaurants and Bars– Rule 9.4 Particularly noteworthy, restaurants and bars are not required to limit capacity to 50% of normal seating. Additionally, restaurants and bars are not required to only sell alcoholic beverages via table service. Also, the rules do not require restaurants to close self-serve and drink options, such as buffets, salad bars, and drink stations.
• Health Care– Rule 9.5 The rules do not require special hours for vulnerable patients.
• In-Home Services– Rule 9.6
• Personal-Care Services– Rule 9.7 The rules do not prohibit self-service refreshments.
• Public Accommodations– Rule 9.8
• Sports and Exercise Facilities– Rule 9.9 Notably, the rules do not require limiting capacity in a facility to 25% of total occupancy. They also do not require closing steam rooms, saunas, hot tubs, or cold plunge pools.
• Meat and Poultry Processing– Rule 9.10
• Casinos– Rule 9.11 The rules do not requiring limiting occupancy to 15% of total occupancy limits. Additionally, casinos are not required to close nightclubs, valet services, coat check, or self-serve food and drink options.

Importantly, if an employee has COVID-19 or exhibits symptoms of COVID-19, employers are required to take measures such as not allowing the employee to come to work, sending the employee home from work, or requiring the employee to work in an isolated location (such as the employee’s home). There is still question regarding the impact of an employee’s negative COVID-19 test and ability to return, an issue that had been the subject of change over Governor Whitmer’s prior Executive Orders.  The Michigan Department of Health and Human Services (MDHHS) recently issued a Gathering Prohibition and Face Covering Order, which should be reviewed carefully if any employees display symptoms, tests positive for COVID-19, or is in close contact with someone experiencing symptoms or who had tested positive.

CONCLUSION

It is important for employers to continue to provide a safe and clean work environment for all employees. Employers must also continue to comply with county rules regarding COVID-19. For more information, MiOSHA released workplace guidelines. Individual employers should contact their local health department and attorney to ensure compliance with all rules. As always, please contact your attorney at Fahey Schultz Burzych Rhodes PLC with any questions or concerns.