MIOSHA Guidance on Its Remote Work Rule
This week, the Michigan Occupational Health and Safety Administration (“MIOSHA”) conducted a webinar addressing MIOSHA’s stance on several COVID-19-related issues, including remote work. The webinar, given by Sean Egan, MIOSHA’s Director of Covid-19 Workplace Safety, focused on remote work requirements, in addition to answering questions submitted by employers. MIOSHA’s Emergency Rules, issued October 14, 2020, remain unchanged. Section 5(8) of those Rules require employers to “create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”
Egan’s webinar provided insight regarding how MIOSHA will enforce the remote work rule, stating:
- Employers must prohibit in person work “to the maximum extent that they can,” and they must demonstrate why remote work is not feasible for each position;
- Individual offices and distancing are insufficient to justify in-person work; and
- Employees’ mental health concerns or preferences to work on-site do not alone justify in-person work.
Egan also advised that an employer’s remote work policy should include a list of positions that require in-person work and the reasons why their job responsibilities cannot be performed remotely. When evaluating employer compliance with the remote work requirement, Egan stated that MIOSHA will look for a “good faith effort” to comply, as evidenced by a “reasoned and thoughtful” policy and implementation of that policy.
In its two Gatherings and Face Mask Orders, the Department of Health and Human Services (“MDHHS”) did not specifically reference MIOSHA’s remote work requirements, but did incorporate MIOSHA’s October 14th Emergency Rules by reference. Section 2(c)(3) of MDHHS’s November 15, 2020 Order states: that gathering limitations did not apply to “Workplace gatherings that occur consistent with the Emergency Rules issued by MIOSHA on October 14, 2020.”
Ramifications for Employers
On November 4, 2020, MIOSHA issued Interim Enforcement Guidance setting forth how the agency will treat certain rule violations. Section G(4) of the Interim Guidance states: “Lack of implementation of a remote work policy would be cited as serious under Rule 4(1). Lack of the existence of a policy would be cited under Rule 5(8) typically as other-than-serious.” As discussed in a previous Client Alert, in October, Public Act 237 of 2020 (House Bill 6031) amended Michigan’s Occupational Safety and Heath Act (the “Act”) to state that employers who comply with all “federal, state, and local statutes, rules, and regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of an employee’s exposure” to COVID-19 would not be held liable for an employee contracting the virus.
Public Act 237 further provides that “isolated, de minimis deviations” from the statutes, rules, etc., that are unrelated to an employee’s exposure would not prevent an employer from being granted immunity from liability. MIOSHA’s Interim Enforcement Guidance indicates that MIOSHA will not consider a violation of its remote work requirement to be a “de minimis deviation” from its Emergency Rules. Accordingly, employers should take steps to ensure they are compliant with those Rules.
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