In the wake of the Michigan Supreme Court’s decision invalidating the law that served as the basis for Governor Whitmer’s emergency COVID-19 orders since April 30, 2020, the Michigan Occupational Safety and Health Administration (MIOSHA) is the latest agency to codify requirements contained in the governor’s now-invalid orders. On October 14, 2020, MIOSHA adopted an emergency rule pursuant to Section 48 of Michigan’s Administrative Procedures Act of 1969. That section allows an agency to adopt an emergency rule without following notice and participation procedures if it finds “that preservation of the public health, safety, or welfare requires promulgation of an emergency rule.”¹ Emergency rules adopted under Section 48 are valid until a date fixed by the rule, or six months from the date the rule is filed, whichever is earlier. The duration of the rule can be extended once for no more than six months upon the governor’s filing of a certificate of need.

MIOSHA’s emergency rule incorporates and codifies employer directives contained in the governor’s prior executive orders. The nine-page rule contains provisions generally applicable to all employers, as well as industry-specific requirements. For example, the rule requires all employers to conduct job hazard assessments and to develop and maintain COVID-19 preparedness and response plans. Additionally, the rule requires all employers to adopt basic infection prevention measures, as specified, for all employees. The rule further requires all employers to conduct a daily entry screening for all employees or contractors entering the workplace, and outlines minimum requirements for such screenings, as well as reporting requirements when the employer learns of an employee, visitor, or customer with a known case of COVID-19.

The rule adopts the requirement that all employers designate one or more COVID-19 safety coordinators, and that such coordinator(s) must be present at that site at all times employees are present. The rule also incorporates social distancing and face covering requirements present in the governor’s prior executive orders, including that employers provide non-medical grade face coverings to employees at no cost. On the subject of personal protective equipment (PPE), the rule mandates that employers provide employees with the types of PPE necessary and appropriate to the exposure risk associated with the job. Additionally, the rule obligates all employers to provide training on COVID-19 and outlines the subjects of such training.

The rule also includes specific requirements for a variety of industries and locations, including: construction; manufacturing; retail, libraries and museums; restaurants and bars; health care; in-home services; personal-care services; public accommodations; sports and exercise facilities; meat and poultry processing; and casinos.

As under the governor’s executive orders, the rule obligates employers to maintain records of COVID-19 training, screening, and required notifications. On the subject of screening, the rule specifically requires that employers maintain a record of screening for each employee or visitor entering the workplace. The records that are to be maintained under the rule must be kept for one year from the time of generation.