25 May 2021

New MIOSHA Rules: What’s In, What’s Out, What’s Next?

Following new guidance from the Centers for Disease Control, Gov. Gretchen Whitmer announced yesterday that the Michigan Occupational Health and Safety Administration has made important changes to its COVID-19 emergency workplace rules, effective immediately. MIOSHA has withdrawn the draft permanent rules concerning COVID-19 and cancelled its public hearing on the rules, previously scheduled for May 26, 2021. MIOSHA does not intend to promulgate new permanent rules at this time. The emergency rules will remain in effect until October 14, 2021, unless withdrawn or updated sooner.

At a webinar today, Miller Johnson attorneys Sarah Willey and Sandy Andre addressed key questions about the new rules for the workplace. The webinar was recorded and is available here:

The slides from the presentation are available here:

Later in the day, Sean Egan, Deputy Director for Labor at Michigan’s office of Labor and Economic Opportunity also hosted a webinar to explain the rules and requirements in more detail and answer live questions from participants. That recording will be available on the MIOSHA YouTube channel:

The overarching theme in the new CDC guidance and the updated MIOSHA rules is that the increase in vaccination rates, and the efficacy of vaccines, is working to slow the spread of COVID-19, making it more possible to return to in person work and ease prescriptive workplace restrictions. Instead, MIOSHA is taking a guidance-based approach focused on minimizing the spread of COVID-19 and keeping workplaces safe and open.

Here are the key takeaways from the updated rules:

  • Employers are no longer required to maintain a “Policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely”
  • Individuals who are fully vaccinated are no longer required to wear a mask at work
  • The period for keeping records of employee health screenings has been shortened from one year to six months
  • Employers are still required to have a COVID safety plan, and a COVID safety coordinator, but that safety coordinator no longer needs to be on site at all times

Here are the top 5 FAQs we’ve heard from clients and participants in the webinars:

Q: Can an employer collect and file a copy of an employee vaccine card?

A: Yes, an employer will be responsible for demonstrating who is and isn’t vaccinated in compliance with the new workplace safety requirements. However, employers are not required to collect and file copies of employee vaccine cards.  Vaccine records or vaccine status is not considered protected health information.

Q: Is someone who has had COVID and recovered the same as a fully vaccinated person?

A: MIOSHA and MDHHS are following the CDC guidelines on COVID safety. The CDC guidelines that inform the new MIOSHA rules only pertain to fully vaccinated individuals, but do not include individuals who have had COVID-19 and recovered.

Q: Are employers still required perform daily health screenings, including temperature checks?

A: Yes, daily health screenings for all employees are required, but temperature checks are no longer required.

Q: And, we do we still have to keep those records?

A: Yes, you still have to keep the records of daily health screenings, but only for unvaccinated employees, and only for six month, not a year.

Q: Can employers or places of business take down physical barriers?

A: That is a question that will need to be answered on a space by space, circumstance specific basis. Employers will have the discretion to determine if physical barriers are necessary for their space, the line of work, and the vaccination rates among their employees.

If you have any questions about the new MIOSHA rules for the workplace, please contact the author or a Miller Johnson employment attorney.