Michigan Adopts Emergency Temporary Standard on COVID-19

Michigan’s emergency COVID-19 worker safety rules took effect on October 14, 2020. The rules apply to all employers covered under Michigan’s occupational safety and health act. The Michigan Occupational Safety and Health Administration (“MIOSHA”) rules will remain in effect for six months unless repealed or revised before then.

The Emergency COVID-19 Worker Safety Rules

The emergency rules apply to all employers that are covered by the Michigan Occupational Safety and Health Act. Key requirements are: 

• Exposure Determination (Rule 3): Employers must categorize job tasks and procedures into four risk categories. The lowest level of risk category is for those workers whose job tasks and procedures do not require frequent contact with individuals known to be or suspected to be infected with SARS-CoV-2[1] and that do not require frequent close contact (i.e., within six feet) with the general public. The highest level of risk, categorized as “very high exposure risk,” covers those job tasks and procedures that have a high potential to expose a worker to known or suspected sources of COVID-19 during specific laboratory, medical, or postmortem procedures. 
   
• COVID-19 Preparedness and Response Plan (Rule 4): Employers must develop and implement a written COVID-19 preparedness and response plan. The plan must be consistent with the current guidance for COVID-19 from the U.S. Centers for Disease Control and Prevention (“CDC”) and recommendations in “Guidance on Preparing Workplaces for COVID-19,” developed by the Occupational Health and Safety Administration. As part of the preparedness and response plan, employers must include the employee exposure determination from Rule 3 and detail the measures employers will implement to prevent employee exposure. This would include measures such as engineering controls, training, administrative controls, and basic infection prevention measures. Employers are required to make the preparedness and response plan available to employees and their representatives via website, internal network, or by hard copy.
   
• Basic Infection Prevention Measures (Rule 5): This rule sets forth steps an employer must take to prevent the infection. This includes promoting frequent and thorough hand washing by providing places for employees, customers, and visitors to wash their hands, as well as soap and water (or antiseptic hand sanitizers or alcohol-based towelettes if soap and running water are not immediately available). 
   
• Health Surveillance (Rule 6): Under Rule 6, an employer must conduct a daily entry self-screening protocol for all employees or contractors that enter the workplace. At a minimum, the protocol must include a questionnaire that covers symptoms and suspected or confirmed exposure to people with possible COVID-19, together with a temperature screening, if possible.
   
• Workplace Controls (Rule 7): Employers must designate one or more worksite COVID-19 safety coordinators who are tasked with implementing, monitoring, and reporting on the COVID-19 strategies developed under the safety rules. Additional workplace controls that are required include social distancing, to the extent possible, and providing non-medical grade face coverings to employees with no cost to the employee.
   
• Personal Protective Equipment (Rule 8): Employers must provide employees with the personal protective equipment needed, including respirators, if necessary, to protect their employees from SARS-CoV-2.
   
• Training Requirements (Rule 10): All employees must receive training on SARS-CoV-2 and COVID-19. Employers must provide the communication and training in the primary languages common in the employee population. If the employer changes its preparedness and response plan or new information about the transmission of SARS-CoV-2 or diagnosis of COVID-19 becomes available, the employer must update the training.
   
• Recordkeeping Requirements (Rule 11): Employers must keep records on training, screening protocols, and required notifications. They must keep the records for one year from the time of generation.

These rules provide no phase-in period for compliance, so compliance was presumably required immediately – or as soon as possible – following their October 14, 2020 effective date.

Industry-Specific Requirements

In addition to the above rule requirements, businesses that fall under the following industry sectors have industry-specific requirements: (1) construction; (2) manufacturing; (3) retail, libraries, and museums; (4) restaurants and bars; (5) health care; (6) in-home services; (7) personal-care services; (8) public accommodations; (9) sports and exercise facilities; (10) meat and poultry processing; and (11) casinos. The industry-specific requirements are set forth in Rule 9.

Under Michigan’s Administrative Procedure Act of 1969, MIOSHA can extend the rules once for no more than six months upon the governor’s filing of a certificate of need. Whether MIOSHA extends the rules or adopts a permanent rule likely depends on the status of the pandemic at the time the temporary rules expire.

Beveridge & Diamond’s Occupational Health & Safety Practice helps companies nationwide and in a variety of industrial sectors on a wide range of worker safety issues—in the rulemaking, counseling and litigation contexts—with a particular focus on chemicals and processes also regulated by environmental programs. We maintain an Occupational Safety & Health Resource Center designed to help companies understand the regulatory framework for worker health and safety protection and stay educated about the federal and state developments affecting their workplaces. For more information, please contact the authors.