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Michigan Increasing Enforcement of Emergency COVID-19 Rules to Ensure In-Person Work Happening Only When Strictly Required

November 10, 2020

young man working from home

Governor Whitmer announced last week that MIOSHA is increasing enforcement of its October 14 Emergency COVID-19 Rules, with a focus on promoting more remote work for offices. Specifically, the Governor’s announcement indicated that the increased enforcement efforts will focus on ensuring compliance with Emergency Rule 5(8)’s “requirement that employer COVID-19 Preparedness and Response Plans contain policies prohibiting in-person work to the extent that work activities can feasibly be completed remotely.” Employers should anticipate increased, unannounced inspections to verify compliance with this requirement beginning immediately.

Last month, the Michigan Department of Health and Human Services issued an Emergency Order prohibiting, among other things, gatherings in workplaces outside of Region 6 if those gatherings are “not strictly necessary to perform job duties.” Less than a week later, the Michigan Occupational Safety and Health Administration issued Emergency Rules which required employers to “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be performed remotely.” Since that time, many employers have grappled with when a gathering is “strictly necessary” or when work activities “can feasibly be performed remotely.”

Last week, DHHS released new guidance for employers which further emphasizes remote work requirements. Similar to DHHS’s prior prohibition on gatherings in the workplace that are “not strictly necessary to perform job duties,” this new DHHS guidance reinforces that “employers should only permit in-person work when attendance is strictly required to perform job duties.” Importantly, the guidance explains that:

A “strict requirement” for in-person work means that a worker is unable to physically complete required job tasks from a remote setting (e.g., like a food service or auto assembly worker, or a job involving protected data that cannot be accessed remotely). It should not be construed as permitting in-person work solely because working remotely may result in decreased productivity or efficiency (i.e., because an employee may be more effective / efficient in person) or because of there may be additional costs related to performing work remotely (i.e., costs for equipment like laptops, VPNs, software licenses).

MIOSHA offered some insight on what it will look for during inspections, noting that:

MIOSHA recognizes that employers must determine who may work remotely, as well as those that must report to work. It is essential that businesses have a thoughtful, reasoned policy for why work that is completed in person cannot feasibly be completed remotely. This is what MIOSHA will check for. MIOSHA will not focus on evaluating the business’ judgment of feasibility, except for cases of obvious misapplication.

When deciding whether and to what extent employees will return to the office, employers should keep in mind both DHHS and MIOSHA guidance, and be aware of the Governor’s increased attention to these requirements. Michigan businesses should review their COVID-19 Preparedness and Response Plans and, if they have not already done so, prepare a remote work policy in accordance with MIOSHA Emergency Rule 5(8). Those found violating the MIOSHA Emergency Rules could face a fine up to $7,000, and those found in violation of the DHHS Emergency Order are subject to “a civil fine of up to $1,000 for each violation or day that a violation continues.”

For more information about these emergency rules, please contact Jason Hanselman (517-374-9181 or jhanselman@dykema.com), Kyle Asher (517-374-9151 or kasher@dykema.com), or your Dykema relationship attorney.

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