MIOSHA Updates COVID-19 Emergency Rules

On May 24, 2021, the Michigan Occupational Safety and Health Administration (“MIOSHA”) issued its updated COVID-19 emergency rules, two weeks after the State of Michigan reached its 55% vaccination threshold. In accordance with the MI Vacc to Normal plan, which was subsequently discarded following the U.S. Centers for Disease Control (“CDC”) guidance on masks, MIOSHA removed the requirement that employers must create a “policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” These updated Emergency Rules take effect immediately and are to remain in effect for six (6) months.

The updated MIOSHA Emergency Rules provide that employers are to require employees, except for those fully vaccinated persons[1], to remain socially distant – at least six feet from one another – and wear face coverings when six feet of separation cannot be maintained. Employers can comply with the exception in the MIOSHA Emergency Rule that fully vaccinated persons do not have to social distance or wear face coverings by:

  • Keeping records of whether employees are fully vaccinated;
  • Posting signs in the work area reminding employees who are not fully vaccinated to wear face coverings and maintain distancing;
  • Allow or require remote work; or
  • Require face coverings for all employees, regardless of vaccination status.

As we previously advised, to comply with the updated MIOSHA Emergency Rules, employers may request that employees provide proof of vaccination (e.g., written confirmation from the employee’s healthcare provider or a copy of the employee’s vaccination card). However, inquiries into an employee’s vaccination status may not go beyond requesting proof that the employee is vaccinated; for example, questions as to why an employee chose to get vaccinated or not, or questions regarding an employee’s reaction to a vaccination, are not permitted as such questions may elicit protected medical or disability-related information. If written proof of the vaccine is requested from employees, it should be treated similarly to other medical information and kept in a separate, confidential medical file and not part of the employee’s personnel file.

Other revisions to the MIOSHA Emergency Rules include the following:

Exposure Determination

  • Employers are no longer required to categorize job tasks and procedures into low, medium, high and very high exposure risks.

Infection Prevention Measures

  • Employees are no longer prohibited from using other employees’ phones, desks, offices, or other work tools and equipment.
  • Cleaning and disinfection procedures are now required to comply with the latest CDC guidance.

Health Surveillance

  • Employers are no longer recommended to conduct a temperature screening for the daily entry self-screening protocol for employees or contractors entering the workplace; however, the daily screening requirement remains in place.
  • Employers are no longer required to notify the local health department of an employee, visitor, or customer with a known case of COVID-19.

Recordkeeping

  • Employers must maintain records of vaccination information sufficient to allow fully vaccinated employees to be exempted from the mask wearing and social distancing requirements.
  • Such records must be maintained for six months from time of generation.

Miscellaneous

  • Employers are no longer required to provide personal protective equipment or to ensure that such PPE is properly fitted, worn, replaced, and stored.
  • Certain industry-specific requirements have been removed.

Keller Thoma will continue to monitor the federal and state legislation and regulations with respect to COVID-19 as they become available. In the meantime, should you wish to discuss any of the above, please do not hesitate to contact your Keller Thoma attorney.

[1] Rule 2(f) of the MIOSHA Rules defines “fully vaccinated persons” as “persons for whom at least 2 weeks have passed after receiving the final dose of an FDA-approved or authorized COVID-19 vaccine.”

Categories: Case Alerts, KT

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