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May 18 2021

MIOSHA Issues Statement on Change in Mask Requirements

By: Nikole L. Canute and Michael J. Huff

Following the Michigan Department of Health and Human Services’ (“MDHHS”) revised Gatherings and Face Mask Order issued this past Friday, May 14, 2021, the Michigan Occupational Safety and Health Administration (“MIOSHA”) has issued a statement indicating it will revise the mask requirements contained in MIOSHA’s emergency COVID-19 rules, which are currently set to remain in effect until October 14, 2021.  MIOSHA is expected to issue revised emergency rules and draft permanent rules related to COVID-19 workplace safety measures.

MIOSHA’s current emergency rules, among other things, require employers to require face coverings in shared spaces and in many other spaces, such as retail stores, gyms, when not seated at a table in a restaurant, and in other areas where social distancing cannot be maintained.  In a recent statement, which can be found on its website, MIOSHA confirmed that it will consider compliance with the MDHHS order “as good faith to comply when responding to employee complaints or conducting investigations related to COVID-19.”  This statement implies that MIOSHA will not enforce its workplace mask rules against employers who comply with the MDHHS Gathering and Face Mask Order.

Notably, the MDHHS Gatherings and Face Mask Order now contains an exception from its face mask requirements for individuals who are fully vaccinated.  The Order further provides that a good faith effort to comply with its mask requirements may include any of the following:

  1. Posting a sign notifying people that wearing a mask is required unless a person falls into a specified exception;
  2. Asking patrons not wearing masks whether they fall into a specified exception;
  3. Requiring face masks of all patrons and employees; or
  4. Any other policy designed to ensure compliance with the requirement that all employees and patrons wear a face mask unless they have a valid exception.

When considering whether to alter workplace mask protocols prior to MIOSHA’s issuance of revised emergency rules, employers should recall that statutes passed by the Michigan Legislature on October 22, 2020, granted limited immunity to businesses from COVID-19 claims, subject to meeting certain conditions.  Under those statutes, businesses must show that they were compliant with applicable state and federal rules and orders during the relevant time period in order to be deemed immune from the COVID-19 claims.  It is not clear whether a business that revises its workplace mask protocols before MIOSHA changes its emergency rules would be able to successfully claim immunity under these statutes.

Contact your Mika Meyers’ attorney with any questions.