Advocacy News – August 10, 2021
With COVID-19 variant cases on the rise, the Centers for Disease Control and Prevention (CDC) announced July 27 that all individuals in high transmission areas, regardless of vaccination status, are “recommended” to wear a mask in public indoor settings in areas of “substantial or high transmission.” The announcement came as COVID-19 cases began to rise again, largely due to the spread of the more contagious Delta variant.
The new CDC interim recommendations have prompted employers in areas of substantial or high transmission to question whether they should reinstate universal mask mandates in the workplace. While it is always advised to consult with legal counsel regarding these decisions, there are a few things to keep in mind as you tackle these decisions:
- The Michigan Department of Health and Human Services (MDHHS) issued a new bulletin on mask wearing on August 4. It specifies: “In Michigan, there is no statewide requirement to wear a face mask in most settings; however, local health departments, establishments, and school districts may have additional rules that must be followed. It is SAFER to wear a mask in high-risk settings where many unvaccinated individuals are present, to protect vulnerable populations, or when community transmission is high.” Please note: It’s possible that MDHHS, the Michigan Occupational Safety and Health Administration (MIOSHA) or your local public health department may move to reinstate a mask mandate in the coming days or weeks. The Chamber will continue to monitor this decision-making and make you aware of any changes.
- Although the MDHHS Epidemic Orders and the MIOSHA Emergency Rules do not currently mandate mask wearing in indoor or outdoor settings, regardless of vaccination status, it is important to remember that all private employers are subject to MIOSHA’s general duty clause, which states: “Each employer shall furnish to each of his employees 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 to his employees.” Since the spreading of COVID-19 is a recognized hazard, employers must continue to work to mitigate that spread, or face violations and penalties.
- Employers continue to have a duty to “educate and train workers on your COVID-19 policies and procedures using accessible formats and in a language they understand.” This can be accomplished by updating your COVID-19 Preparedness and Response Plan (previously required by the MIOSHA Emergency Rules). COVID-19 Preparedness and Response plans should document your ongoing preventative measures, evidencing the provision of the requisite “safe and healthy workplace,” including cleaning and disinfection protocols and the requirement that certain employees are prohibited onsite (e.g., any employee who is symptomatic of and/or diagnosed with COVID-19 and any employee who is not fully vaccinated and experienced close contact with a confirmed case of COVID-19 in the preceding 14 days). It is also recommended that you review the U.S. Occupational Safety and Health Administration’s (OSHA) “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” which focuses protections on unvaccinated and otherwise at-risk workers and encourages COVID-19 vaccinations.
- Michigan’s COVID-19 Response and Reopening Liability Assurance Act (or COVID-19 Liability Law), which was signed into law in October of 2020, provides that a person who complies with all federal, state and local statutes, rules, regulations, executive orders and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm is immune from liability for a COVID-19 claim. The new CDC recommendations, at this time, were released as “Interim Public Health Recommendations for Fully Vaccinated People” (emphasis added). Employers concerned about how the new CDC recommendations may impact their ability to claim immunity in the future should consult with legal counsel and discuss whether it would be wise to consider making adjustments to their mask requirements for all employees.
On the question of vaccines, many employers continue to grapple with whether or not to mandate vaccines as part of their return-to-work policies. If you fall into this category, we highly encourage you to join us for a webinar hosted by the Chamber and Miller Johnson. This webinar, which is FREE to Chamber members, will be held this Thursday, Aug. 11 at 10 a.m. You can sign up HERE (or visit this website to view an on-demand version after the webinar has concluded). Given all the questions about mask mandates, we expect this to be a topic of conversation and discussion on the webinar as well.
We recognize that the evolving guidance on COVID-19 and mask-wearing can be confusing to employers and employees alike. It is important for employers to stay updated on the latest recommendations and to document the actions taken to prevent the spread of COVID-19 infections in the workplace. Doing so will put you in the best position to keep your employees and customers safe, defend against any future claims related to COVID-19 and potentially take advantage of Michigan’s COVID-19 Liability Law.
We will continue to keep you posted on any developments. In the meantime, please contact Wendy Block with any questions at wblock@michamber.com.