Michigan’s rate of COVID-19 infection seems to be increasing each day, as does the volume of orders, rules, and guidance documents applicable to Michigan businesses operating during the COVID-19 pandemic.

MDHHS Emergency Order

Citing a need to stop the ongoing and growing spread of COVID-19, Governor Gretchen Whitmer announced the issuance of a new emergency order by the Michigan Department of Health and Human Services (MDHHS) on November 15, 2020. The Emergency Gatherings and Face Mask Order, which went into effect on November 18, 2020, sets limits on residential and public gatherings, as well as in-person learning, until its scheduled expiration on December 8, 2020.

On the issue of remote work versus in-person work, the order does not introduce any new requirements, but it confirms that workplace “gatherings” (i.e., “two or more persons from more than one household [who] are present in a shared space”) must be consistent with the emergency rules previously issued by the Michigan Department of Labor and Economic Opportunity’s Occupational Safety and Health Administration (MIOSHA) on October 14, 2020.

On November 6, 2020, MDHHS issued “Guidelines for Keeping a Safe Workplace,” which includes recommendations for remote work in office settings. Although the guidance did not create binding requirements, MDHHS stated that “[t]he responsibility to maintain a safe workplace is paramount, and strongly suggests that employers should allow their employees to work from home if possible.” The MDHSS guidance further stated, “[E]mployers should only permit in-person work when attendance is strictly required to perform job duties.” The guidance explained that work must be performed remotely unless a worker is unable to physically complete required job tasks from a remote setting (such as food service or automobile assembly work). MSHHS also created some uncertainty about how strictly MIOSHA’s remote work rules would be interpreted, stating that:

• employers would not be excused from the requirement to have employees work from home if working from home would merely “result in decreased productivity or efficiency”; and

• employers could not avoid the work-from-home requirement merely because “there may be additional costs related to performing work remotely,” such as for computer equipment, VPNs, or software licenses.

MIOSHA Emergency Rules

On October 14, 2020, MIOSHA promulgated emergency rules intended to control, prevent, and mitigate the spread of COVID-19. Among MIOSHA’s October 14, 2020, emergency rules is the requirement that each employer covered by the Michigan Occupational Safety and Health Act “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” MIOSHA did not define the term “feasibly,” leaving employers to interpret MIOSHA’s intent.

MIOSHA did not issue formal guidance, but posted frequently asked questions (FAQs) regarding several of the emergency rules. The FAQs address the remote work rule, stating that employer policies (which can be part of the COVID-19 preparedness and response plan) should be in writing and provide “that employees are not to perform in-person work activities where the work activity can … feasibly be completed remotely.”

According to the FAQs, employers must be prepared to demonstrate the infeasibility of remote work and must include in their written remote work determinations at least the following:

• “Which positions/classifications report for in-person work and why they must be physically present in the workplace”; and

• “Reasons that this work cannot be performed remotely,” with sufficient specificity to show that the required analysis has been performed.

Notably, a previous version of the FAQs stated that MIOSHA would defer to employers’ judgment in making remote work determinations. The current FAQs deleted this language, signaling that MIOSHA intends to focus on the soundness of employers’ rationales for requiring in-person work. MIOSHA’s emergency rules also require employers to evaluate and categorize job tasks and procedures into four risk categories (low, medium, high, and very high) and develop updated COVID-19 preparedness and response plans that identify the employee exposure determinations required by the emergency rules.

On November 16, 2020, in the wake of the new MDHHS emergency order, MIOSHA hosted a webinar titled, “Remote Work Policies Q&A with COVID-19 Workplace Safety Director, Sean Egan.” In the webinar, Egan emphasized that in-person work must be prohibited as much as possible given the high rate of infection in Michigan and reiterated that employers must be prepared to demonstrate the reasons why work cannot be performed remotely.

MIOSHA also published a state emphasis program agency instruction prioritizing inspections in office settings and enforcement of the remote work policy rule. While these inspections will seek to help employers comply with safety standards, if the inspections determine deficiencies in the employer’s COVID-19 risk assessments, preparedness and response plans, and remote work policies, employers may be subject to citations and penalties up to $7,000 per violation.

Key Takeaways for Employers

In light of MIOSHA’s increased enforcement efforts and the potential for noncompliance penalties, employers may want to consider the following:

• updating their COVID-19 preparedness and response plans to conduct, among other things, the risk assessments required by the MIOSHA emergency rules;

• preparing remote work policies in accordance with MIOSHA’s emergency rules, keeping in mind that the latest guidance from MIOSHA and MDHHS suggests that the rationale for in-person work may be subject to scrutiny;

• implementing all of the health screening and other safety protocols required by the emergency rules and monitoring those protocols to ensure full compliance; and

• maintaining all records of compliance, including health screening responses, as required by the emergency rules.

Although MIOSHA’s emergency rules became effective October 14, 2020, and are set to remain in effect for six months, the laws and regulations surrounding COVID-19 are constantly evolving.