The Emergency Rules Were Issued In Response to the Michigan Supreme Court’s Decision Invalidating Governor Whitmer’s Executive Orders
The Michigan Supreme Court’s decision that Governor Whitmer lacked the power to extend her declaration of emergency past April 30, 2020 resulted in the invalidation of numerous emergency orders, including those that imposed specific obligations upon employers to provide workplaces safe from potential coronavirus exposure. To fill that gap, on Wednesday, October 14, the Department of Labor and Economic Opportunity issued emergency rules under the state Administrative Procedures Act that impose several requirements upon employers in the state of Michigan. Those rules, which are issued under Michigan’s Occupational Safety and Health Act, are effective immediately and remain in effect for six months.
Thankfully, the new rules will be familiar to employers that have been following the earlier emergency orders issued by the Governor. Employers must conduct an “exposure determination” for all employees, categorizing jobs into one of four categories depending upon their risk of exposure, and then must develop and implement a written COVID-19 preparedness and response plan consistent with current CDC guidance. That plan must detail the measures that the employer will implement to prevent employee exposure through engineering controls, administrative controls, basic infection prevention measures, personal protective equipment, health surveillance, and training.
Employers also must implement basic infection prevention measures, including promoting frequent and thorough hand-washing. Employers also must require employees who are sick not to report to work (or to work in an isolated location), prohibit employees from using each others’ workspaces and tools, perform frequent and thorough cleaning of workspaces, and, perhaps most importantly, prohibit in-person work for employees to the extent their work can feasibly be performed remotely.
As was required under the Governor’s earlier (now invalidated) orders, employers must conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19 along with, if possible, a temperature screening.
Employers also must direct employees to promptly report any signs and symptoms of COVID-19 before or during the shift. When an employer learns of an employee, visitor, or customer with a known case of COVID-19, it must immediately notify the local public health department and, within 24 hours of learning of the known case, notify any co-workers, contractors, or suppliers who may have come in contacts with the infected person. Employees with known or suspected cases of COVID-19 may return to the workplace only after they are no longer infections according to the latest CDC guidelines, and after they are released from any quarantine or isolation order by the local health department.
Employers also must designate one or more COVID-19 safety coordinators to implement, monitor, and report on the COVID-19 control strategies that are in place. Posters must be placed in the workplace that encourage staying away from the workplace when sick, cough and sneeze etiquette, and proper hand hygiene practices. Employees must be kept six feet apart to the maximum extent possible and take steps to reduce congestion, including using ground markings, signs and physical barriers, and must provide non-medical grade face coverings to their employees at no cost to the employee. If employees cannot consistently maintain six feet of separation from other individuals in the workplace, they must be required to wear face coverings and, if three feet of separation cannot be maintained, consider the use of face shields. And, face coverings must be required in shared spaces, such as during in-person meetings and in restrooms and hallways.
Finally, there are specific new rules that cover a variety of industries including construction, manufacturing, retail, libraries and museums, restaurants and bars, health care, in-home services, personal-care services, public accommodations, and others.
All employers in Michigan should familiarize themselves with these new rules and take steps to implement their requirements. If you have questions regarding these new rules, contact James Hermon at (313) 568-6540, or any other member of the Dykema Labor and Employment practice group.