On November 5, 2020, Governor Whitmer announced that the Michigan Occupational Safety and Health Administration (MIOSHA) would be increasing enforcement of the MIOSHA Emergency Rules on COVID-19 (Emergency Rules), with a specific focus on promoting more remote work for offices. Recall that MIOSHA issued the Emergency Rules on October 14, 2020, following the Michigan Supreme Court’s ruling against the Governor on October 2, 2020.
According to the Governor, MIOSHA will be implementing a new state emphasis program for office work. The purpose of the program will be educating employers on compliance with COVID-19 guidelines and rules, and encouraging more remote work. In addition, MIOSHA will be increasing scrutiny of remote work policies required by Emergency Rule 5(8), which states that all employers must “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” The increased enforcement efforts may also result in more in-person inspections by MIOSHA. The new program and increased enforcement efforts are expected to begin sometime next week.
The following day, on November 6, 2020, the Michigan Department of Health and Human Services (MDHHS) released new guidance for employers. The MDHHS guidance, issued with reference to the MIOSHA Emergency Rules, states that “employers should only permit in-person work when attendance is strictly required to perform job duties.” The guidance goes on to state that this “strict requirement” should “not be construed as permitting in-person work solely because working remotely may result in decreased productivity or efficiency” or “because there may be additional costs relating to performing work remotely.” Rather, the guidance explains, this “strict requirement” means that in-person work is only permitted when a worker is “unable to physically complete” his or her job tasks in a remote setting.
Failure to comply with the MIOSHA Emergency Rules could result in several consequences for Michigan businesses. Under Section 35 of the Michigan Occupational Safety and Health Act, MIOSHA has the authority to cite employers, require abatement, and fine employers up to $7,000 for failing to produce a remote work policy, or if an employer’s COVID-19 Preparedness and Response Plan fails to comply with the Emergency Rules. In light of the forthcoming enforcement efforts and the penalties connected with non-compliance, Michigan businesses should review their COVID-19 Preparedness and Response Plans for compliance with the Emergency Rules, and prepare a remote work policy in accordance with Emergency Rule 5(8) and taking into consideration the new MDHHS guidance.
Please contact any member of the Varnum team for assistance in understanding how these developments may affect your workplace.