Michigan Department of Health and Human Services (MDHHS) issued new guidance on Friday, November 6, 2020, which follows MDHHS’s Emergency Order (updated on October 30th) and Michigan Occupational Safety and Health Administration (MIOSHA)’s October 14th Emergency Rules (“Rules”). In particular, the new guidance specifically states that employers should allow their employees to work from home if possible – and “should only permit in-person work when attendance is strictly necessary to perform job duties.” This requirement goes further than the October 14th Emergency Rules, which required that employers have a remote work policy “to the extent that employees’ work activities can feasibly be completed remotely.”
To help employers understand what is meant by its “strict requirement” advising against in-person work, MDHHS provided additional guidance, stating that in-person work should be limited to work that one is “unable to physically complete from a remote setting,” such as food service or auto assembly, or a job involving data that cannot be accessed remotely. In addition, a decrease in productivity or efficiency (“i.e., because an employee may be more effective/efficient in person”) is not sufficient to permit in-person work, nor are the additional costs associated with hardware, software, and services necessary to implement remote work policies.
The remaining part of the MDHHS guidance reminds employers what MIOSHA and MDHHS have previously required:
- Create and maintain a COVID preparedness plan to prevent employee exposure to COVID-19.
- Establish clear workplace procedures to minimize the spread of COVID-19.
- Conduct daily self-screening for all people entering the workplace, and employers should not let anyone who is symptomatic enter the premises.
- Strengthen workplace cleaning and disinfection procedures, including limiting the use of co-workers’ equipment.
- If an employee contracts COVID-19, employers should work with local health departments to conduct contact tracing.
In addition to the new guidance issued by MDHHS, Governor Whitmer announced on Thursday, November 5, 2020, that MIOSHA is planning to roll out a new statewide program relating to office work this week. This program will be designed to educate employers and seek compliance with COVID-19 rules and guidance; this educational program will be coupled with MIOSHA increasing enforcement of remote work policies that are required to be put in place by its Rules.
Businesses that fail to comply with the requirements of the Rules may incur significant penalties. Section 35 of the Michigan Occupational Safety and Health Act (“Act”) provides that MIOSHA may cite employers, require abatement, and fine employers up to $7,000 for each violation of the Rules, such as not having a remote work policy in place or having a COVID-19 preparedness plan that fails to comply with the Rules.
Given the forthcoming MIOSHA program, it is imperative for businesses to review their remote work policies and preparedness plans to ensure they comply with the Rules. Businesses are strongly encouraged to take the new MDHHS guidance and the Rules into consideration when reviewing and preparing their policies and plans in order to protect themselves from any MIOSHA action.
Rhoades McKee is continually monitoring legal developments related to COVID-19 and will keep you updated. In the meantime, should you have any questions about the new order issued by the MDHHS or other issues, please do not hesitate to contact a member of the Rhoades McKee COVID-19 Legal Response Team.
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