Maintaining MIOSHA Compliance in the Rapidly Changing COVID-19 Environment
As the COVID-19 pandemic unfolds, business owners, managers and executives may be wondering:
1. What are the employer’s responsibilities to keep employees safe from COVID-19?
2. Do I need to report to MIOSHA that an employee has been diagnosed with COVID-19?
In this article, we address these questions with a focus on helping business owners maintain employee safety as well as regulatory compliance.
On March 23, 2020, Governor Whitmer issued a “stay-at-home” order titled Executive Order 2020-21 (the “EO 2020-21” or the “Order”). While most workers across Michigan are now prohibited from leaving home to work, under the Order critical infrastructure workers and others are allowed to perform in-person work. For more information on the scope of the Order, see our companion article here.
What are the employer’s responsibilities to keep employees safe from COVID-19?
While MIOSHA direct guidance appears lacking, the Federal Occupational Safety and Health Administration (OSHA) guidance should be carefully considered.
Certain relevant OSHA standards that may apply to preventing occupational exposure to COVID-19 are consistent with an employer’s duty to provide a safe working environment.
- According to OSHA standards, “Employers should assess the hazards to which their workers may be exposed; evaluate the risk of exposure; and select, implement, and ensure workers use controls to prevent exposure. Control measures may include a combination of engineering and administrative controls, safe work practices, and Personal Protective Equipment (PPE).”
- The OSHA and MIOSHA General Duty Clauses require employers to furnish each worker employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. An OSHA publication on Preparing Workplaces for COVID-19 can be found here.
Do I need to report to MIOSHA that an employee has been diagnosed with COVID-19?
OSHA’s guidelines indicate that COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. Evaluating the potential source of the illness is an area ripe with uncertainty and the conclusion that the illness is, or is not, work-related should weigh the current state of medical knowledge, an evaluation of the employee’s job duties, and consideration of the work environment, among other things. OSHA’s online guidance suggests that employers are only responsible for recording cases of COVID-19 if all of the following criteria are met:
1. The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
2. The case is work-related, as defined by the Code of Federal Regulations; and
3. The case involves one or more of the general recording criteria set forth in the Code of Federal Regulations (e.g. medical treatment beyond first-aid, days away from work).
Whether a case of employee-contracted COVID-19 is work-related will involve an individualized inquiry. Careful consideration should be given by an employer before making the determination that the development of COVID-19 is work-related and this decision should be well documented. The workplace rules relating to COVID-19 are rapidly evolving.
Please contact the attorneys below for more information:
Richard S. Baron—rbaron@fbmjlaw.com
Benjamin L. Fruchey—bfruchey@fbmjlaw.com
Nicholas J. Tatro—ntatro@fbmjlaw.com
Foley, Baron, Metzger & Juip, PLLC has implemented a work from home policy that is compliant with EO 2020-21. Our attorneys are available via mobile phone, email, and online video conferencing including Skype for Business and Webex.