March 28, 2023

Volume XIII, Number 87


March 27, 2023

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MIOSHA Increasing Enforcement of Remote Work Requirements under State Emphasis Program

As COVID-19 diagnoses surge across Michigan, the Michigan Occupational Safety and Health Administration (“MIOSHA”) announced that enforcement of Emergency Rules on COVID-19 would be expanded and that increased emphasis would be placed requiring remote-work protocols for employers.

The announcement was made November 5, following the report of 18 new outbreaks from the previous week tied to office settings. Under the MIOSHA Emergency Rules (“Emergency Rules”) – issued in October to replace portions of executive orders deemed unconstitutional by the Michigan Supreme Court – employers are required to put in place a COVID-19 Preparedness and Response Plan. Under the Emergency Rules, employers must also “[C]reate a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”

Deficiencies in an employer’s Preparedness and Response Plan, or failure to comply with the remote work requirements, can result in citations from MIOSHA, mandatory abatement, and a fine of up to $7,000 for serious violations.

Following the announcement, the Michigan Department of Health and Human Services issued its own Guidelines for Keeping a Safe Workplace on November 6. These guidelines, which stated that “Work should be completed remotely unless it is strictly necessary for an employee to be in person to complete their job duties” created some confusion over how strictly the MIOSHA requirement prohibiting in-person work should be interpreted.  However, in line with the MIOSHA requirements, the MDHHS recommendations also state that a “strict requirement” for in-person work means that a worker is unable to physically complete required job tasks from a remote setting (e.g., like a food service or auto assembly worker, or a job involving protected data that cannot be accessed remotely). Given these two sources of authority, we believe remote work requirements should not be construed as permitting in-person work solely because working remotely may result in decreased productivity or efficiency (i.e., because an employee may be more effective in person) or because there may be additional costs related to performing work remotely (i.e., costs for equipment).

In a statement issued by MIOSHA on November 12, Director Bart Pickelman clarified the position of the Administration to be consistent with the MDHHS recommendations.

The statement reiterated that remote work protocols remain mandatory and that, “. . . all workplaces in Michigan must promote and continue remote work to the absolute maximum.” The statement also emphasized that MIOSHA will conduct inspections at workplaces with traditional office settings to review how rules are being followed and enhance compliance. While the emphasis of these programs will be to provide assistance to the employer, MIOSHA may issue citations and penalties for especially serious violations. To support these efforts, the state of Michigan has issued a set of online resources which provides employers with the guidelines they and their employees must follow and includes a sample COVID-19 preparedness and response plan and a reopening checklist to help businesses put safeguards in place.

MIOSHA has also implemented an Ambassador Program to assist employers in evaluating their workplace safety precautions. Ambassadors will not issue fines, and will utilize a 16-page Ambassador Assessment to evaluate precautions and provide recommendations.

© 2023 Foley & Lardner LLPNational Law Review, Volume X, Number 318

About this Author

Steven H. Hilfinger, Foley Lardner, Senior Lender Counsel, Global Finance Lawyer

Steve Hilfinger is a partner and business lawyer with Foley & Lardner LLP. He has more than 25 years of transactional and finance experience, including representing private and public companies, senior lenders, mezzanine lenders and borrowers, venture capital funds and private equity funds, automotive suppliers and other manufacturers. Mr. Hilfinger focuses his practice in corporate and securities law matters, including mergers and acquisitions, corporate restructurings, private equity and venture capital transactions, debt and equity finance transactions, business...

Jeffery Kopp, Labor Attorney, Foley and Lardner Law Firm

Jeffrey S. Kopp is a partner and litigation attorney with Foley & Lardner LLP. He has represented and counseled clients in various labor and employment, FMLA, OFCCP and EEO compliance, unemployment, workers compensation leave, and non-compete and trade secret matters. Mr. Kopp is a member of the firm’s Labor & Employment Practice, the Automotive Industry Team and the Trade Secret/Non-Compete Task Force. Mr. Kopp also represents employers in matters involving federal and state occupational safety and health agencies, including matters involving employee fatalities...

RobNederhood, business lawyer
Senior Counsel

Robert Nederhood is a senior counsel and business lawyer with Foley & Lardner LLP where he focuses his practice on mergers and acquisitions, and represents public and private companies in connection with transactions, corporate restructurings, and commercial contracting. He also has experience representing both debtors and purchasers in connection with the sale of companies in bankruptcy, and assists clients with a variety of Michigan state government matters.

Kenneth A. Johnson Business Attorney Foley & Lardner Detroit, MI

Kenneth Johnson is a business law associate with Foley & Lardner LLP. He is a member of the firm’s Transactions Practice.

Previously, Ken served as a summer associate at Foley’s Detroit Office. Prior to joining Foley, Ken worked as a summer associate assisting with bond issuances and real estate matters for public schools. He was also a founding member of the University of Michigan Health System Finance Development Program, where he worked as a finance and strategy consultant prior to law school.


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