OPPOSE MIOSHA'S PERMANENT COVID-19 WORKPLACE SAFETY RULES - Michigan Retailers Association

Written by Amy Drumm | May 10, 2021 4:00:00 AM

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 yet realize is MIOSHA is working to make these emergency rules permanent.

The administration has filed draft rules that are inflexible, do not follow evolving CDC guidance, make no adjustments for vaccinated individuals and has no rescission or repeal date included. Even as the state hits the recently announced vaccine targets under the “MI Vacc to Normal” plan, the MIOSHA rules will remain the same and potentially put workers in jeopardy by still requiring them to enforce things like mask mandates even if MDHHS rescinds the gatherings and face mask order.

Further complicating things is the fact that permanent rules are extremely difficult to amend or change. Changes take months and sometimes years to go through the full rule-making process. The MIOSHA emergency and proposed permanent rules (see “Draft Rule Language”) appear to remain an outlier which is why it is so important for employers to share their concerns with MIOSHA directly at a public hearing that will be held virtually at 9:00 a.m. on May 26. MRA encourages members to join us in submitting comments and/or speaking at the hearing. If you’re interested in doing so, please contact Amy Drumm at adrumm@retailers.com .

Steps you can take to halt permanent rules:

Submit written comments directly to MIOSHA on making emergency COVID rules permanent – be sure to include that you oppose the rules in your comments!
- Written and electronic comments should be sent to the following address not later than 5:00 p.m. on Wednesday, May 26, 2021.
  - Department of Labor and Economic Opportunity
  - MIOSHA, Technical Services Division, Standards and FOIA Section
  - 530 West Allegan Street – P.O. Box 30643 – Lansing MI 48909-8143
  - Telephone 517.284.7740
  - Facsimile 517.284.7735
  - E-mail: kloppt@michigan.gov

Testify at the May 26 virtual hearing.

Reasons to oppose permanent rules:

Lack of sunset/repeal date – These rules will effectively be in place forever until rescinded by the administration, there is no trigger to peel them back based on changes in epidemic orders or CDC guidance.
Lack of basis in science – Despite on-going changes, the rules propose keeping the status quo from when the pandemic was in full force and no vaccines were available.
Continuous mask mandate for customers and employees – The rules go above and beyond what the CDC and even the state health department requires by not allowing the mask requirement to go away for fully vaccinated individuals and others when the state otherwise makes changes via MDHHS epidemic order.
Industry-specific guidelines – The rules essentially rolled former executive orders into rule format and go beyond protecting employees, which is MIOSHA’s purview, to also make requirements for customers entering retail stores and other businesses. These limitations on business activities and customer behavior should be restricted to the state’s health department, not the Michigan Occupational Safety and Health Administration.
Lack of comment on vaccinations – The rules fail to make any adjustments or accommodations for fully vaccinated individuals (customers or employees).
Inconsistent with CDC – In most cases, the proposed permanent rules fail to reference the regularly changing CDC guidance (or MDHHS epidemic orders) and instead set different standards, causing confusion for businesses, customers and employees on which rules and guidance to follow.
Requires employers to permanently promote remote work – Despite making progress towards hitting the state’s “MI Vacc to Normal” plan vaccination goals that allow in-person work to continue, the permanent rules would require employers to permanently promote remote work options, even once it’s safe to return.
No Federal OSHA rules – Michigan is one of two states with emergency workplace safety rules and even Federal OSHA has delayed issuing any emergency or permanent rules on COVID, largely because the rules are unlikely to meet a high standard of proof that they are truly necessary.

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