Michigan Employers Face Vigorous Enforcement of COVID-19 Rules

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:

• Develop a COVID-19 Preparedness and Response Plan.
• Designate an employee to implement, monitor, and report on the COVID-19 Preparedness Plan. A supervisor or employee designee must always be available on site when employees are present.
• Provide COVID-19 training on workplace infection-control practices, use of Personal Protective Equipment, what to do to notify company representatives if an employee is experiencing COVID-19 symptoms or is diagnosed with COVID-19, and how to report unsafe working conditions.
• Conduct daily entry self-screening protocols for all employees and/or contractors entering the workplace. This includes, at a minimum, a questionnaire regarding symptoms and possible exposure to COVID-19.
• Ensure proper social distancing (6 feet) at the worksite through markings, signs, or barriers.
• Provide non-medical grade face coverings to employees.
• Require face coverings when employees cannot maintain proper distancing from other employees.
• Increase daily cleanings and disinfection.
• Adopt protocols in the event of a positive COVID-19 case in the workplace.
• Have cleaning supplies readily available to employees upon entry and at the worksite and provide time for employees to frequently wash or sanitize their hands.
• If an employee has a confirmed case of COVID-19, the employer must, within 24-hours, notify the local public health department and any co-workers, contractors, or suppliers who may have come into contact with the employee.
• Follow Executive Order 2020-36, and any subsequent executive orders, that prohibit discharging, disciplining, or otherwise retaliating against employees who stay home or who leave work when they are a risk of infecting others with COVID-19.
• Establish a response plan for dealing with a confirmed infection, including protocols for sending employees home and for temporary closures of all or part for cleaning and disinfecting.
• Restrict business-related travel.
• Encourage the use of PPE and sanitizer when using public transportation.
• Promote remote work if possible.
• Adopt any additional infection control measures that are reasonable.
• Maintain records of the following:
  • All employee training related to COVID-19.
  • Questionnaires from daily self-screenings addressing symptoms and suspected or confirmed exposures to COVID-19.
  • Notifications to the local public health department and to workers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.

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.

Conclusion

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.