What the New MIOSHA Changes Mean for You

Recently, MIOSHA has rescinded their Emergency Order and dialed down their requirements. They are strongly encouraging businesses to follow the CDC and OSHA guidance concerning protecting your workers from COVID-19 and allowing you to use your judgement in continuing using your COVID-19 Response Plans. What does that mean exactly? What are your obligations to your employees? Will they fine you? The good thing is, you are already prepared to follow the CDC/OSHA guidelines, you have your COVID-19 Response Plan, you are completing your health screenings, and you are protecting your unvaccinated employees by social distancing and/or requiring them to wear masks when they can’t maintain six feet of distance from others.

As referenced by OSHA, the CDC’s Interim Public Health Recommendations for Fully Vaccinated People explain that under most circumstances, fully vaccinated people need not take all the precautions that unvaccinated people should take. For example, CDC advises that most fully vaccinated people can resume activities without wearing masks or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules and regulations, including local business and workplace guidance. OHSA is recognizing the vaccination status of your employees, so if 100% of your employees are fully vaccinated, then you may stop reading and go about your life as if there is no pandemic, this is the carrot of the governing agencies. However, if you have employee’s that are not fully vaccinated, then continue on with the read. Remember, MIOSHA does have the duty to protect Michigan workers and has the flexibility to rule under OSHA.

The guidance from OSHA contains recommendations as well as descriptions of mandatory safety and health standards, the latter of which are clearly labeled throughout as “mandatory OSHA standards.” The recommendations are advisory in nature and informational in content, and are intended to “assist employers in providing a safe and healthful workplace free from recognized hazards that are causing or likely to cause death or serious physical harm.” This sentence in quotations is what the MIOSHA compliance officer may use to issue a fine if you do not have the following “good-faith effort“ components in place:

1) COVID-19 Preparedness and Response Plan,

2) Health monitoring

3) Masking of non-vaccinated persons when they cannot maintain 6-feet distance.

As business owners, you are already familiar with this part of the federal and state safety standard stance that each employer shall furnish to each of his employees a place of employment that is free from recognized hazards (COVID-19) that are causing or are likely to cause death or serious physical harm to his employees, so this is nothing new. The workplace free of recognized hazards that are causing or likely to cause death or serious physical harm, is the obligation to your employees. If you choose to follow the OSHA/CDC recommendations there are a few more they suggest, again, the majority of you already have these in place:

Grant paid time off for employees to get vaccinated
Instruct any workers who are infected, regardless of status, should stay home away from work
Implement physical distancing for unvaccinated or at-risk workers in all communal work areas.
Provide face coverings, at no cost, to the unvaccinated employee
Educate and train workers on your COVID-19 policies and procedures
Suggest that unvaccinated customers, visitors, or guests wear face coverings
Maintain Ventilation Systems
Perform routine cleaning and disinfection
Record and report COVID-19 infections and deaths (OSHA 29 CFR.1904)
Implement protections from retaliation and set up an anonymous process for workers to voice concerns about COVID-19 related hazards
Follow other applicable mandatory OSHA standards, such as PPE, Respiratory Protection, bloodborne pathogens, employee access to medical and exposure records.
Stagger break times in high-population workplaces, or provide temporary break areas and restrooms to avoid groups of unvaccinated or otherwise at-risk workers congregating during breaks. Unvaccinated or otherwise at-risk workers should maintain at least 6 feet of distance from others at all times, including on breaks.
Stagger workers’ arrival and departure times to avoid congregations of unvaccinated or otherwise at-risk in parking areas, locker rooms, and near time clocks.
Provide visual cues (e.g., floor markings, signs) as a reminder to maintain physical distancing.
Implement strategies (tailored to your workplace) to improve ventilation that protects workers as outlined in CDC’s Ventilation in Buildings and in the OSHA Alert: COVID-19 Guidance on Ventilation in the Workplace.
Proper spacing of unvaccinated or otherwise at-risk workers (or if not possible, appropriate use of barriers) can help reduce the risks for such workers.

So really, what has changed? MIOSHA no longer has an Executive Order and has placed the responsibility squarely upon you as the employer to follow the CDC and OSHA guidance to ensure that your employees are protected from COVID-19. What does this mean? These are the same COVID-19 mitigation techniques you have been using for the past 15-months, so there really is no change. You now have the choice to continue with the above and provide a safe workplace that is mitigating a recognized hazard that causes illness or death, or not to do so. If you choose to deviate from the guidance above, and not provide a safe workplace free from recognized hazards, you may be opening yourself up to fines and losing an already limited and valuable employee resource that you don’t have the luxury of losing in this time due to quarantining or succumbing to the virus. On the upside, if you have a fully vaccinated staff… it’s business as usual; that’s the carrot.

As always, please reach out to your Loss Control consultant if you have more questions and updated COVID-19 materials are available on our portal.