MIOSHA’s Revised Emergency Rules After MDHHS’ Recission of its Emergency Orders

Following the Michigan Department of Health and Human Services’ lifting of its Emergency Orders, the Michigan Occupational Safety and Health Administration (MIOSHA) rescinded its updated Emergency Rules from May 2021 and adopted revised Emergency Rules, effective June 22, 2021, that will remain in effect until December 31, 2021. The revised MIOSHA Emergency Rules draw a distinction between non-health care employers and health care employers for purposes of COVID-19 prevention standards.

Non-Health Care Employers

As a result of MIOSHA’s recission of its May 2021 Emergency Orders, non-health care employers are no longer required to implement a work from home policy or enforce daily screening, social distancing, and mask wearing, regardless of employee vaccination status. Rather, MIOSHA announced that employers in non-health care settings are to use their best judgment in determining whether to maintain daily health screening, face covering requirements, and social distancing requirements. Additionally, the federal Occupational Safety and Health Administration (OSHA) encourages that non-health care employers follow CDC guidance. OSHA has also implemented a guidance for recommendations for employers to follow to protect unvaccinated or other at-risk workers. In its guidance, OSHA reminds employers, regardless of specific regulations on COVID-19, that employers are required to provide their workers with a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious injury under the Occupational Safety and Health Act.

Covered Health Care Employers

As noted, the revised MIOSHA Emergency Rules continue to apply to health care employers by way of reference to OSHA’s Emergency Temporary Standard (ETS) and related regulations. The ETS applies to all settings where an employee provides health care or health care support services. The ETS identifies the following categories of professional health care practitioners as those who provide health care services: doctors, nurses, emergency medical personnel, oral health professionals. Based upon this definition of health care services, the ETS would apply to emergency medical technicians (EMT), paramedics, and cross-trained firefighters with paramedic or EMT licensures. Additionally, the ETS would apply to mental health professionals (e.g., therapists or counselors) as these professionals are also providing health care services as defined in the ETS.[1]

The ETS imposes requirements related to the development and implementation of a COVID-19 plan, health screening, social distancing and installation of physical barriers, personal protective equipment, cleaning and disinfection, ventilation, training, and recordkeeping. However, the ETS’s requirements on PPE, physical distancing, and physical barriers do not apply to employees who are fully vaccinated.

With the recission of MIOSHA’s May 2021 Emergency Orders, employers are no longer obligated to implement the COVID-19 prevention measures that have been in place over much of the past year. However, health care employers should continue enforcing such prevention measures for non-vaccinated employees that provide health care services, such as EMTs, paramedics, or therapists. 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] OHSA defines the term “healthcare services” in the ETS as “services that are provided to individuals by professional healthcare practitioners…for the purpose of promoting, maintaining, monitoring, or restoring health.”

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