Michigan’s New COVID-19 Workplace Safety Rules: Enforcement of Regulatory Compliance May Increase – Is Your Business Compliant?

As more and more of Michigan’s economy is being reopened, Governor Whitmer set forth required workplace safeguards in a separate and standalone executive order. Executive Order No. 2020-91 states the standards announced under the Order will have the force and effect of agency rules and will be “vigorously enforced by the agencies that oversee compliance with other health-and-safety rules” and that any business or operation that violates the rules in the order “has failed to provide a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to an employee, within the meaning of the Michigan Occupational Safety and Health Act, MCL 408.1011.”

Executive Order No. 2020-91 contains a long list of requirements that all businesses that are permitted to require their employees to leave their homes or residences for work under Executive Order No. 2020-92 must have in place. Section 1 of Executive Order 2020-91 has 17 items that are required for all such businesses. A few of those items are highlighted below:

• Develop a COVID-19 preparedness and response plan (the “Plan”). This Plan must be consistent with recommendations in Guidance on Preparing Workplaces for COVID-19 as developed by the Occupational Health and Safety Administration and available here. Under EO 2020-91, by June 1, 2020, or within two weeks of resuming in-person activities, whichever is later, a business’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy.
• Designate one or more worksite supervisors to implement, monitor, and report on the COVID-19 control strategies developed under the Plan. This supervisor must remain on-site at all times when employees are present on site. An on-site employee may be designated to perform the supervisory role.
• Provide specific COVID-19 training to employees as outlined in EO 2020-91.
• Conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID19.
• Provide non-medical grade face coverings to employees.
• When an employee is identified with a confirmed case of COVID-19, within 24 hours, notify both: (1) The local public health department, and (2) Any co-workers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.
• Adopt any additional infection-control measures that are reasonable in light of the work performed at the worksite and the rate of infection in the surrounding community (additional guidance on this requirement is expected to be forthcoming from state agencies/departments in accordance with Executive Directive No. 2020-6).
• All employers must maintain records of employee training as required under the EO, the daily entry self-screening protocol/questionnaire, and the required notifications in the event of a confirmed case of COVID-19.

Executive Order No. 2020-91 contains additional requirements for all businesses with in-person operations as well as some industry-specific requirements (e.g., work traditionally performed outdoors, construction industry, manufacturing facilities, research laboratories, retail stores, offices, and restaurants/bars).

Governor Whitmer also issued Executive Directive No. 2020-6 on May 18, 2020, which is aimed at fostering compliance with the workplace safety requirements set out in EO 2020-91 by directing state departments and agencies to monitor for compliance and to bring enforcement actions as necessary. Executive Directive No. 2020-6 also provides that a Director of COVID-19 Workplace Safety will be appointed to coordinate the state’s efforts to monitor and enforce workplace safeguards.

Compliance with the requirements in Executive Order 2020-91 will be important not only for the safety of your employees and operations as your business reopens but also to help protect your business from any enforcement actions or potential liability.

If you have any questions about compliance, please contact Courtney Kissel (248-203-0743 or ckissel@dykema.com), Ann Fillingham (517-374-9146 or afillingham@dykema.com) or Len Wolfe (517-374-9178 or lwolfe@dykema.com).

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