December 2, 2021

Volume XI, Number 336

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Michigan’s COVID-19 Emergency Rules Suspended for All Industries Except Healthcare

On June 22, 2021, the Michigan Occupational Safety and Health Administration (MIOSHA) announced important changes to its emergency COVID-19 rules, “Emergency Rules Coronavirus Disease 2019 (COVID-19).”

The updated emergency rules, which take effect immediately, and expire in six months, supersede all of the COVID-19 emergency rules that the Michigan Occupational Safety and Health Administration (MIOSHA) previously had in place. MIOSHA’s updated emergency rules do not apply broadly to general industry or construction employers; rather, they apply only to “healthcare employers covered in the Michigan occupational safety and health act.”

Definitions

MIOSHA adopted and incorporated by reference the entirety of the Occupational Safety and Health Administration’s (OSHA) recently issued COVID-19 Emergency Temporary Standard (ETS) for the healthcare industry. Although MIOSHA’s updated emergency rules does not define “healthcare employers,” OSHA’s COVID-19 ETS covers all settings where any employee provides healthcare services or healthcare support services. The ETS defines “healthcare services” as

Services that are provided to individuals by professional healthcare practitioners (e.g., doctors, nurses, emergency medical personnel, oral health professionals) for the purpose of promoting, maintaining, monitoring, or restoring health. Healthcare services are delivered through various means including: hospitalization, long-term care, ambulatory care, home health and hospice care, emergency medical response, and patient transport. For the purposes of this section, healthcare services include autopsies.

The ETS defines “healthcare support services” as

Services that facilitate the provision of healthcare services. Healthcare support services include patient intake/admission, patient food services, equipment and facility maintenance, housekeeping services, healthcare laundry services, medical waste handling services, and medical equipment cleaning/reprocessing services.

OSHA’s COVID-19 ETS, and thus MIOSHA’s updated emergency rules, impose a host of infection control requirements on healthcare employers, including many that Michigan healthcare employers likely already have in place, such as the following:

Infection Control Requirements on Healthcare Employers

COVID-19 Plan

The ETS requires healthcare employers to develop and implement a COVID-19 plan that identifies a designated safety coordinator, addresses results of a hazard assessment, and includes policies and procedures to minimize the risk of transmission of COVID-19.

Patient Screening and Management

The ETS requires healthcare employers to– limit and monitor points of entry to areas where direct patient care is provided and screen and triage patients and other visitors.

Personal Protective Equipment (PPE)

The ETS requires healthcare employers to “provide, and ensure that employees wear, facemask” when indoors and “when occupying a vehicle with other people for work purposes” and provide and ensure employees use “respirators and other PPE for exposure to people with suspected or confirmed COVID-19.”

Physical Distancing

The ETS requires healthcare employers to keep individuals at least six feet apart when indoors.

Physical Barriers

Where employees are not separated from other people by at least six feet, the ETS requires healthcare employers to “install cleanable or disposable solid barriers” at each fixed work location outside of direct patient care areas.

Health Screening and Medical Management

The ETS requires healthcare employers to screen employees before each workday and shift, requires employees to promptly notify employers when an employee is COVID-19 positive or experiencing certain symptoms, notify certain employees within 24 hours when someone in the workplace is COVID-19 positive, and follow requirements for removing employees from the workplace.

Training

The ETS requires healthcare employers to train all employees about COVID-19 transmission, “tasks and situations in the workplace that could result in COVID-19 infection,” and about related policies and procedures.

New Requirements on Healthcare Employers

MIOSHA’s updated emergency rules impose new requirements upon healthcare employers as well, including the following:

Mini Respiratory Protection Program

The emergency rules apply when employees use respirators where OSHA only requires facemasks. The program provides a streamlined set of requirements for the safe use of respirators, which are intended to be easier and faster to implement than the more comprehensive elements required by OSHA’s normal respiratory protection standard.

Medical Removal

Employers must immediately remove employees with known or suspected cases of COVID-19 from their workplaces and keep them out of the workplaces until they meet certain criteria. Employers must notify close contacts to employees known or suspected to have COVID-19 and remove close contacts from work under certain circumstances.

Medical Removal Protection Benefits

Employers “must continue to pay” any employee removed from the workplace for a known or suspected case of COVID-19 “the same regular pay and benefits the employee would have received had the employee not been absent from work.”

COVID-19 Recordkeeping

According to the emergency rules, employers must “establish and maintain a COVID-19 log to record each instance identified by the employer in which an employee is COVID-19 positive, regardless of whether the instance is connected to exposure to COVID-19 at work.”

Considerations for Employers in Other Industries

MIOSHA’s updated emergency rules, like OSHA’s COVID-19 ETS, do not apply to industries outside of healthcare. But nonhealthcare employers may want to be mindful that MIOSHA can and will enforce elements of published guidance, like that of the U.S. Centers for Disease Control and Prevention (CDC) or OSHA, in the absence of an applicable regulation through use of the general duty clause.

Michigan’s general duty clause requires employers to provide employees with “employment and a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to employees.” The agency has already relied upon the general duty clause to cite some employers during the COVID-19 pandemic and there is not any indication that the agency will abandon this tactic. Michigan employers may want to continue to familiarize themselves with COVID-19 guidance from the federal government, MIOSHA, the Michigan Department of Health and Human Services, and local public health agencies to ensure that their COVID-19 policies and procedures are in alignment with the general duty clause.

Current OSHA and CDC guidance focuses primarily on protecting unvaccinated or otherwise high-risk workers and suggests that confirmed, fully vaccinated employees may work without masks and social distancing. At the same time as the issuance of OSHA’s ETS, the agency also issued a guidance for non-healthcare employers.

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 174
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About this Author

Valerie N. Butera Labor & Employment Attorney Ogletree, Deakins, Nash, Smoak & Stewart Detroit, MI
Of Counsel

Valerie Butera has focused her legal career on the representation of employers and trade associations in workplace safety and health matters.  She has extensive experience, both in private practice and in-house, working with a wide range of industries including automotive, chemical and petrochemical, oil refining, electric utility, manufacturing, construction, railway, grain refining, retail, hospitality, health care, and food services.  She litigates OSHA cases before state and federal agencies, courts and federal appellate courts and provides comprehensive OSHA counseling.

Valerie...

248-723-6122
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