On October 14, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) issued a new set of emergency rules (“Rules”) establishing requirements for employers to control, prevent, and mitigate the spread of COVID-19. These Rules took immediate effect and remain in effect for six (6) months.
The Rules establish several significant limitations on businesses and apply to virtually every employer in the State of Michigan. Significantly, the Rules clarify a common question asked after the recent MDHHS Order: employers shall “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” In other words, employers must tell employees “if you can do your work at home, you must do your work at home.”
Requirements For All Employers
Employers must now evaluate routine and reasonably anticipated tasks and procedures of their employees in order to determine the risk of exposure to COVID-19. Once the employer has evaluated these tasks and procedures, they must categorize them into the following risk categories: (i) lower exposure risk; (ii) medium exposure risk; (iii) high exposure risk; and (iv) very high exposure risk.
Preparedness and Response Plan
Employers must develop and implement a written COVID-19 preparedness and response plan, consistent with the current guidance for COVID-19 from the CDC and recommendations developed by OSHA, and include employee exposure determination as outlined above and detail what measures the employer will implement to prevent employee exposure. This plan must be made available to every employee and their representatives.
Basic Infection Prevention Measures
Employers shall promote basic infection prevention measures for their employees including:
- Encouraging frequent hand washing, and if hand washing is not available, providing antiseptic hand sanitizers or alcohol-based hand towelettes containing at least sixty percent (60%) alcohol;
- Requiring employees who are sick to not report to work or work from a remote location;
- Prohibiting employees from using other employees’ phones, desk, offices, or other work equipment whenever possible;
- Increasing facility cleaning and disinfection procedures to limit exposure
- Establishing procedures for disinfection in accordance with CDC guidance if there is a suspicion or confirmation that an employee, visitor, or customer has a known case of COVID-19;
- Using Environmental Protection Agency approved disinfectants;
- Following manufacturer instructions for the use of all cleaning and disinfection products; and
- Creating a policy prohibiting in-person work for employees to the extent their work activities can be completed remotely.
Employers must provide a daily “self-screening” for all employees – including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
Employers must not allow employees with known or suspected cases of COVID-19 to report to work, and must send employees with known or suspected cases home or make them work alone or at a “remote location” (which could be their home) as their health allows.
When an employer learns that an employee, visitor, or customer has a known case of COVID-19, the employer must:
- Immediately notify the local public health department; and
- Within 24 hours of learning of the known case, notify any employees, contractors, or suppliers who may have come into contact with the infected individual.
Employers shall allow employees with a known or suspected case of COVID-19 to return to work only after they are no longer infectious according to the latest guidelines from the CDC and they are released from any quarantine order issued by the local public health department.
In order to effectively monitor workplace safety, employers shall:
- Designate one or more worksite COVID-19 safety coordinators to implement, monitor, and report on control strategies developed pursuant to the Rules, who shall remain on-site at all times when employees are present;
- Place posters that encourage staying away from the worksite when sick and other proper hygiene practices;
- Ensure social distancing to the maximum extent possible, including using signs, ground markings, and barriers where appropriate;
- Provide non-medical grade face coverings for employees at no cost to the employees and require these face coverings to be worn when social distancing cannot be maintained;
- Consider providing face shields to employees when employees cannot maintain three (3) feet of separation from other individuals in the workplace; and
- Require face coverings in shared spaces, including in-person meetings and in restrooms and hallways.
Personal Protective Equipment Requirements
Employers shall provide employees with appropriate types of personal protective equipment appropriate to the identified risk associated with each employee’s specific job. The personal protective equipment must meet current guidance provided by the CDC and OSHA.
The employer shall ensure that personal protective equipment is properly worn, used, inspected, maintained, replaced as necessary, cleaned, stored, and disposed of in order to keep the worksite free from contamination.
For workplaces that provide medical treatment or housing for known or suspected cases of COVID-19, the employer shall ensure employees in frequent or close contact with such cases are provided with, at a minimum, an N95 respirator, goggles or face shield, and a gown.
Employers must provide training for all employees on workplace infection-control practices, the proper use of PPE, steps to notify the employer of any symptoms or suspected or confirmed cases, and how to report unsafe working conditions. If the employer makes any changes in its preparedness and response plan, or new information becomes available about the transmission or diagnosis of COVID-19, the employer is required to update the training it provides to employees.
Employers must maintain records, for one year following the time of generation of: (i) all COVID-19 employee training; (ii) screenings for each employee or individual entering the workplace; and (iii) notifications that are required pursuant to the Rules.
In addition to the requirements set forth for all employers, the Rules also set forth specific requirements for industries including: construction; manufacturing; retail, libraries, and museums; restaurants and bars; health care; in-home services; personal-care services; public accommodations; sports and exercise facilities; meat and poultry processing plants; and casinos.
Detailed guidance on these industry specific guidelines may be found on the MIOSHA webpage.
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 Rules issued by MIOSHA or other issues, please do not hesitate to contact a member of the Rhoades McKee COVID-19 Legal Response Team.More Publications