News From The Capitol: Victory alert – state cancels permanent COVID workplace safety rules

Amy Drumm, Vice President of Government Affairs for Michigan Retailers Association
Amy Drumm Vice President, Government Affairs

By AMY DRUMM, MRA Vice President, Government Affairs

We bring you news of a great victory! After over two months and nearly 28 hours of meetings, MRA and others were successful in getting the state to concede that developing permanent rules for COVID-19 did not make sense.

On May 20, the governor’s office and legislative leaders announced the rules request would be rescinded as part of a deal on the budget, how to spend federal COVID funds and future epidemic orders. The following Monday, the state updated its emergency rules to officially align with the latest CDC guidance on mask wearing by vaccinated individuals (both customers and employees). The emergency rules also stripped out the industry-specific provisions which were duplicative and a hold-over from previous executive orders. Capacity restrictions and customer requirements (while we don’t love them to begin with) should always have been handled via epidemic order rather than through a workplace safety rule set.

So why is this such a big win for employers and why did it take so long to come together? Employers by now are familiar with the long list of COVID-19 workplace safety requirements issued under emergency rule by the Michigan Occupational Safety and Health Administration (MIOSHA) back in October and the subsequent investigations, fines and press releases of those found out of compliance. What employers may not have realized is the emergency rules can only be in place for a max of one year, which prompted the state to draft a permanent rule set while everyone waited to see how long our exit from COVID would take.

Permanent rules go through a lengthy, formal rule-making process. The rules become static and reflect the snapshot in time when the rulemaking process began with the filing of proposed rules. The only way to make future changes is to send the proposed changes through the same process, which can take 12-18 months.

In March, MIOSHA convened a Part 505, Coronavirus Disease 2019 (COVID-19) advisory committee that MRA had a seat on as a technical advisor. The committee met eight times over four weeks, having lengthy, yet unproductive conversations about the proposed language that would ultimately be used to draft the permanent rules. MRA and other representatives from the business community stressed the need to added flexibility by tying the rules to CDC guidance and also to the rescission or expiration or updates of epidemic orders issued by MDHHS, like the gathering and face mask orders.

Yet, when MIOSHA filed draft rules in April they incorporated only a few of the changes and suggestions the advisory committee discussed, rejecting many of the recommendations MRA and the business community proposed. The lack of flexibility, no adjustments for vaccinated individuals and no rescission date was highly concerning given that even as the state hits the reopening targets under the “MI Vacc to Normal” plan (which has since been condensed to two reopening dates of June 1 and July 1), the MIOSHA rules would remain unchanged, presenting a different set of rules employers must follow than what the public generally understands is permissible.

We anticipated and warned against the challenges the rule’s inflexibility presented after the CDC’s announcement on vaccinated individuals not needing to wear masks. Unfortunately, what we predicted came true since the state wasn’t able to act quickly enough to issue a statement from MIOSHA that following the health department’s epidemic order would be sufficient and avoid fines. That statement came the Monday following the Thursday/Friday announcements. Confrontations happened in retail stores and restaurants around the state over the weekend since the MIOSHA rules still required workers to enforce mask mandates even after MDHHS updated its gatherings and face mask order.

The elimination of the permanent rules request and update of the emergency rules provide much-needed relief to retailers and one set of clear guidance to follow as we emerge from the pandemic and resume more normal life.

Did you know MRA has a weekly legislative update that you can listen to? MRA’s Jennifer Rook and I chat about what retailers need to know and what the happenings around the Michigan Capitol are from the previous week. These listen-in legislative updates are typically sent via email on Mondays so you can start your week with all the latest developments and info you need to know.