State Agencies to Vigorously Enforce COVID-19 Exposure Control Rules on Employers
Governor’s Executive Order No. 2020-91 (May 18, 2020) “Safeguards to protect Michigan’s workers from COVID-19”
On May 18, 2020, Governor Whitmer issued Executive Order No. 2020-91 “Safeguards to Protect Michigan’s Workers From COVID-19.” The Order outlines specific requirements businesses must follow and implement while reopening after being closed due to the COVID-19 pandemic.
EO COVID-19 Rules Will be Vigorously Enforced
The Order creates an enforceable set of workplace requirements applicable for all businesses in the state. The COVID-19 requirements have the force and effect of agency rules and “will be vigorously enforced.”
The Order also states that any failure to abide by these rules will also constitute a failure to provide employees with a workplace that is free from recognized hazards within the meaning of the Michigan Occupational Safety and Health Act, MCL 408.1011 (MIOSH Act General Duty Clause).
COVID-19 Preparedness and Response Plan
The Order’s primary requirement is that employers develop and implement a COVID-19 Preparedness and Response Plan. This plan must be implemented by June 1, 2020, or within two weeks of or resuming in-person activities, whichever is later. The Order sets forth a laundry list of requirements employers must implement during the transition to regular work operations. This plan must be made readily available to employees, labor unions, and customers, and must be consistent with the Occupational Safety and Health Administration’s COVID-19 guide.
In addition, the Order requires that businesses or operations requiring employees to come to the workplace, implement, at a minimum, the following:
Industry Specific Requirements
The Executive Order also sets forth specific requirements for manufacturing facilities, construction operations, outdoors business operations , research laboratories, retail stores, offices, and restaurants and bars. Each industry group has requirements specific to their industry. There is, however, some overlap between the general COVID-19 requirements applicable to all businesses and the industry specific requirements. We recommended that you carefully review the Order to specifically identify the requirements your business must follow.
Public Posting of COVID-19 EO Citations Issued to Employers
Finally, if an employer is issued a citation, Executive Directive No. 2020-6, which was also issued on May 18, 2020, directs the department or agency who enforced the standards, to publicly post citations of those employers that fail to follow the rules adopted in Executive Order 2020-91. We believe this is an attempt to put added pressure on employers to strictly follow the Order’s COVID-19 Preparedness and Response requirements or be publicly shamed.
There exists a distinct possibility that not every employer in the state will agree with MIOSHA’s or another’s state agency’s interpretation of the Order’s requirements. There also exists a possibility that MIOSHA, or another state agency, could improperly interpret the Order’s requirements. Public posting/shaming and/or encouraging media coverage of alleged violations of the Order’s requirements imposes punishment before an alleged violation has been proven.
The EO indicates that the state will consider establishing a process to remove an employer from a public postings if the employer has “demonstrated to the department’s or agency’s satisfaction that they have cured past violations and come into compliance.”
If an employer is alleged to have violated the Order and is issued a citation, the employer may contest the alleged violation in an administrative appeal.
While the Executive Order could be considered a bit “heavy-handed,” there is no doubt that it is in the best interest of every employer to have a COVID-19 Preparedness and Response Plan. It will prevent exposures in their workplace. It will provide employees with comfort that the company is taking the necessary actions to keep employees safe while at work. In the event of a complaint or other COVID related claim against an employer, a COVID-19 Preparedness and Response Plan can show the reasonable and appropriate actions the employer took to protect employees.
This article contains general information about the topic addressed. It by no means is intended to fully cover the topic and is not intended to be, or relied upon as, legal advice. Employers should contact legal counsel to obtain specific advice with respect to their workplaces.
Douglas W. Crim, PLC represents and counsels employers in OSHA/MIOSHA inspections and appeals and other workplace safety and health matters, including the current COVID-19 issues.