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Volume X, Number 338

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Governor Whitmer Announces New Efforts to Increase Enforcement of COVID-19 Workplace Safety Rules

On November 5, 2020, Governor Whitmer announced that the Michigan Occupational Safety and Health Administration (MIOSHA) would be increasing enforcement of the MIOSHA Emergency Rules on COVID-19 (Emergency Rules), with a specific focus on promoting more remote work for offices. Recall that MIOSHA issued the Emergency Rules on October 14, 2020, following the Michigan Supreme Court's ruling against the Governor on October 2, 2020.

According to the Governor, MIOSHA will be implementing a new state emphasis program for office work. The purpose of the program will be educating employers on compliance with COVID-19 guidelines and rules, and encouraging more remote work. In addition, MIOSHA will be increasing scrutiny of remote work policies required by Emergency Rule 5(8), which states that all employers must "create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely." The increased enforcement efforts may also result in more in-person inspections by MIOSHA. The new program and increased enforcement efforts are expected to begin sometime next week.

The following day, on November 6, 2020, the Michigan Department of Health and Human Services (MDHHS) released new guidance for employers. The MDHHS guidance, issued with reference to the MIOSHA Emergency Rules, states that "employers should only permit in-person work when attendance is strictly required to perform job duties." The guidance goes on to state that this "strict requirement" should "not be construed as permitting in-person work solely because working remotely may result in decreased productivity or efficiency" or "because there may be additional costs relating to performing work remotely." Rather, the guidance explains, this "strict requirement" means that in-person work is only permitted when a worker is "unable to physically complete" his or her job tasks in a remote setting.

Failure to comply with the MIOSHA Emergency Rules could result in several consequences for Michigan businesses. Under Section 35 of the Michigan Occupational Safety and Health Act, MIOSHA has the authority to cite employers, require abatement, and fine employers up to $7,000 for failing to produce a remote work policy, or if an employer's COVID-19 Preparedness and Response Plan fails to comply with the Emergency Rules. In light of the forthcoming enforcement efforts and the penalties connected with non-compliance, Michigan businesses should review their COVID-19 Preparedness and Response Plans for compliance with the Emergency Rules, and prepare a remote work policy in accordance with Emergency Rule 5(8) and taking into consideration the new MDHHS guidance.

© 2020 Varnum LLPNational Law Review, Volume X, Number 311
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About this Author

David E. Khorey, Labor Employment Attorney, Varnum, Workplace Confidentiality Matters Lawyer
Partner

Dave’s “client-centered” practice involves a variety of labor and employment issues. He provides practical and confidential ongoing advice and consulting on a number of sensitive and complex labor and employment matters, from problem employee situations to multi-facility collective bargaining negotiations. His representative clients include diverse industries (such as automotive, printing, transportation and hospitals) throughout the nation.  

Dave has also served as chair of the firm.

Honors & Recognitions...

616-336-6618
Richard R. Symons, labor and employment lawyer, Varnum
Partner

Rick is a member of Varnum's Labor and Employment Practice Team. He focuses on the defense of employers in workers’ compensation litigation, from managing contested cases in an aggressive and efficient manner to assessing cost-containment methods. He represents employers at all levels of the court system, including the Workers’ Compensation Appellate Court, the Michigan Court of Appeals, and Michigan Supreme Court.

Rick has handled multiple Michigan Occupational Safety and Health Administration (MIOSHA) inspections and appeals, including appeals of citations following a complaint,...

616-336-6617
Ashleigh E. Draft Associate Grand Rapids Labor & Employment
Associate

Ashleigh is an associate attorney currently working with the labor and employment group. She also works with higher education clients and provides support on a variety of litigation matters.

Ashleigh’s experience includes serving as a legal extern for the Michigan Court of Appeals Research Division. She also clerked for Michigan Appeals Court Judge Jane Beckering. Prior to law school, Ashleigh served organizations in the higher education and nonprofit sectors in various development and communications roles. 

616-336-6627
Barbara Moore, Varnum, employment lawyer
Associate

Barbara is an associate currently working with Varnum's Labor and Employment Team. She has experience with issues related to workplace policies, discrimination in the workplace, the ADA and FMLA, and state and federal wage-hour matters. Barbara also serves the Business and Corporate Services Practice Team by providing assistance with mergers and acquisitions.

Within the community, Barbara serves as a volunteer with the Tutor Mate program and has experience working on pro bono matters.

616/336-6556
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