18 May 2021

MIOSHA Announcement Regarding Mask Requirements After Latest CDC Guidance and MDHHS Order

MIOSHA updated their website late Monday with a statement to clarify that they will not enforce the face mask requirements in their current Emergency Rules against employers who are otherwise in compliance with the most recent MDHHS Epidemic Order that was effective Saturday, May 15.  Here is what MIOSHA had to say:

MIOSHA will soon post updated workplace rules reflecting the CDC’s recent guidance on face masks for fully vaccinated people. Until then, MIOSHA will consider compliance with the MDHHS order as good faith to comply when responding to employee complaints or conducting investigation related to COVID-19.

As a reminder, last Thursday, the CDC updated its guidance for fully vaccinated persons, indicating that “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”

The MDHHS quickly followed suit with an updated Epidemic Order that also allows fully vaccinated persons to be exempt from wearing a face mask at most indoor gatherings, but businesses must show a good faith effort to ensure compliance with the indoor mask requirement for all persons not fully vaccinated or otherwise falling into a specified exemption. Those good faith efforts can include “posting a sign notifying people that wearing a mask is required unless a person falls into a specified exemption; asking patrons not wearing masks whether they fall into a specified exemption; continuing to require face masks of all patrons and employees; or implementing any other policy designed to ensure compliance with the indoor face mask requirement.”

Notwithstanding those changes by the CDC and MDHHS, employers in Michigan are still subject to MIOSHA’s Emergency Rules, which still require (among many other things) employees and customers to wear face masks when they are in common spaces and when they cannot maintain six feet of distance from each other. We now understand that MIOSHA will temporarily enforce the mask requirements in the MDHHS Order (rather than their own Emergency Rules) while it updates its Emergency Rules.

We are hopeful that MIOSHA will issue revised Emergency Rules by the end of the week.  In the meantime, clients should reach out to their Miller Johnson attorney with questions or for advice related to how this MIOSHA pronouncement impacts their workplace and options for demonstrating a good faith effort to comply with the MDHHS mask requirements.