MI COVID Rescission Order Leaves MIOSHA Rules Intact . . . For Now

On June 17, 2021, Michigan Governor Whitmer announced that the Michigan Department of Health and Human Services would rescind many of the emergency orders as of June 22, 2021. The earlier than expected termination of the Coronavirus emergency orders have the effect of rescinding the broad June 1 Gathering and Face Mask orders, which limited indoor capacity to 50% and required unvaccinated individuals to wear masks indoors, among other things.

The Rescinded Orders include:

1. Gatherings and Face Mask Order (signed on May 24, 2021; effective on June 1, 2021)
2. Temporary Restrictions for Entry into Congregate Care and Juvenile Justice Facilities (October 29, 2020)
3. Mandatory Testing for Michigan Department of Health and Human Services’ Juvenile Justice Facility Staff (signed on September 18, 2020)
4. Mandatory Testing for Michigan Department of Health and Human Services Hospitals and Centers Staff (September 14, 2020)
5. Exceptions to Temporary Restrictions on Entry into Congregate Care and Juvenile Justice Facilities (June 29, 2020)
6. Exceptions to Temporary Restrictions on Entry into Certain Facilities (June 3, 2020)
7.  Safe Housing for Housing Unstable Individuals (May 12, 2020)
8. Handling of Bodily Remains (May 4, 2020)
9. Safe Housing for Michigan Homeless (April 28, 2020)

The Rescission did not address the Michigan Occupational Safety and Health Administration (MIOSHA) emergency rules which were last updated on May 24, 2021, and set to remain in effect to October 14, 2021. The MIOSHA rules still in effect were discussed a few weeks ago, here.  Under these rules, Employers:

• May allow fully vaccinated employees to not wear face coverings and social distance provided they have a policy deemed effective to ensure non-vaccinated individuals continue to follow these requirements.
• Are required to keep a Covid-19 preparedness and response plan in accordance with the updated rules from the CDC and OSHA;
• Must continue recordkeeping of fully vaccinated employees if exempting them from wearing facial covering and physical distancing;
• Must maintain update cleaning protocols in accordance with changes in CDC guidance;

The Rule also:

• Updated definitions of “close contact” and “fully vaccinated persons”;
• Continued requirement of health surveillance for all employees and contractors;
• Continued requirement of 6 feet social distancing for non-vaccinated employees, to the extent feasible while on worksite.

As of this writing, it is not clear whether MIOSHA will also terminate its emergency rules for employers, where there appears to be a contradiction in the face mask requirement for unvaccinated individuals, among other requirements. Nonetheless, Employers should take a wait and see approach in ceasing compliance with the MIOSHA requirements.

The most likely result will be that MIOSHA adopts the federal rules by reference, except for health care employers, while all other employers will be required to follow the federal rules. We will likely see the MIOSHA rules updated prior to June 22, 2021.

*** UPDATE June 23, 2021 ***

As expected, on June 22, 2021, MIOSHA updated its emergency rules to align with the Federal OSHA’s Emergency Temporary Standard. The new rules are effective through December 22, 2021 and rescind the emergency rules issued on May 24, 2021. The new rules focus on the health care industry where known or suspected COVID-19 patients may be present.

Employers in non-health care settings are to follow the CDC and OSHA recommendations, as well as use their best judgment in whether they should continue to require daily health screenings, face covering requirements, and social distancing.

If your company has questions on how to navigate the return to the workplace, please do not hesitate to contact me at ztomich@daltontomich.com.