MIOSHA Releases Updated Workplace COVID-19 Emergency Rule Revision. Catches Up to OSHA, CDC, and MDHHS.

June 23, 2021

By Michael Burns, courtesy of SBAM Approved Partner ASE

June 22, MIOSHA published new emergency rules superseding its May 24^th emergency rule revisions.

ASE has received many calls asking if the rescission of masking and social distancing rules by the Michigan Department of Health and Human Services (MHDDS) also meant the workplace rules were rescinded. Up until yesterday, ASE had explained that MIOSHA had not issued any updated direction, and therefore, MIOSHA’s May 24^th workplace COVID-19 rules were still in effect for Michigan employers.

The new MIOSHA rules notice follows OSHA’s previously released COVID-19 workplace safety guidelines issued June 10^th and supersedes the May MIOSHA rules.

OSHA’s COVID -19 safety rules published June 10th were in two parts. The Emergency Temporary Standard (ETS) includes stricter safety and health rules applicable to healthcare workplaces. The ETS requires that healthcare workers continue social distancing, barriers between workstations, face coverings, and more.

The second part of OSHA’s June 10^th notice included guidance (not rules) for all other employers that stated:

Unless otherwise required by federal, state, local, tribal, or territorial laws, rules, and regulations, most employers no longer need to take steps to protect their fully vaccinated workers who are not otherwise at-risk from COVID-19 exposure. [italics and bold added]

OSHA’s guidelines only focused on protecting unvaccinated or otherwise at-risk workers in the workplace. These guidelines maintained previous safety and health interventions employers would still be required to take to protect the unvaccinated and other at-risk workers.

Specifically, OSHA now states:

Unvaccinated Workers and At-risk Workers are recommended to

Be masked
Practice social distancing

Employers will need to decide on a policy and practice designed to protect its workers.

The employer must:

Record and report COVID-19 infections and deaths. This is under existing OSHA rule 29 CFR 1904 and not specific to COVID but applies to any illness, injury, or death.
Not retaliate or discriminate against employees speaking out about unsafe working conditions or reporting of infection or exposure to COVID. It can also include actions against an employee that raise concerns about infection control to not only the employer but to an agent of the employer, other employees, a government agency, or to the public through most any means. So be careful when challenging an employee that puts information out on the internet about what may be happening in the workplace pursuant to COVID. This is pursuant to 29 CFR 1904. 35 (b). OSHA has stated however it will not enforce 29 CFR 1904 recording requirements when it involves worker side effects to COVID vaccination. This will be in effect till May 2022/
Follow other applicable OSHA standards. This will include, as stated above, provision of necessary PPE, respiratory protection, sanitation, protection from bloodborne pathogens, and employee access to medical and exposure records.

Further, employers are encouraged to:

Grant paid time off for employees to get vaccinated
Instruct workers who are infected, unvaccinated workers that have had close contact with someone testing positive for COVID, and all workers that have COVID symptoms to stay home away from work
Continue to provide unvaccinated and otherwise at-risk workers personal protective equipment (PPE)
Continue to educate workers on required COVID-19 policies and procedures
Suggest unvaccinated customers, visitors, or guests wear face coverings
Continue to have an updated emergency preparedness and response plan
Conduct pre-screening action as employees and visitors enter the workplace
Continue cleaning and sanitization of the workplace

With MIOSHA’s revised emergency rules Michigan now officially comes into line with previously published federal OSHA workplace guidance which in turn references the Centers for Disease Control (CDC).

This still leaves employers with a decision about the risk of virus contraction by unvaccinated and at-risk employees in the workplace. Employers may ask its employees whether they are vaccinated or not. They may also ask for documentation. An employer should not make further inquiry after that, and employers then are in a position to accept information about vaccination as true.

Employers should keep in mind that OSHA did not offer updated guidance on:

Acceptable methods for identifying or verifying which workers are in fact vaccinated and would therefore no longer need protection
Workers that had COVID in the past 90 days but are not vaccinated – Can they also be treated as vaccinated?
COVID-19 workplace coordinators
Extensive and enhanced cleaning and disinfection
Screening and testing

With the issuance of this new emergency rule, MIOSHA is now following federal COVID-19 guidance issued by OSHA June 10^th. Federal OSHA safety rules are also in effect and these rules would continue to cover general safety protocols whether directed at COVID prevention or other safety hazards.