Advocacy News – May 18, 2021
The Michigan Occupational Safety and Health Administration (MIOSHA) issued a statement on their website Monday evening indicating they will enforce the MIOSHA Emergency Rules, which mandate mask wearing for employees as well as customers, patrons, visitors and contractors in many settings, in accordance with new Michigan Department of Health and Human Services (MDHHS) Epidemic Order issued late last week.
MIOSHA posted the following statement on the MIOSHA Emergency Rules and proposed PERMANENT Rules on their website: “MIOSHA is in the process of reviewing both the emergency rules and draft permanent rules. The agency has the flexibility it needs to ensure consistency with public health guidelines and will continue to protect Michigan workers as we work toward ending this pandemic. MIOSHA will soon post updated workplace rules reflecting the CDC’s recent guidance on face masks for fully vaccinated people. Until then, MIOSHA will consider compliance with the MDHHS [Epidemic] Order as good faith to comply when responding to employee complaints or conducting investigations related to COVID-19.”
The CDC guidance recommends “fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”
The new MDHHS Epidemic Order, which MIOSHA will now look to see whether employers and businesses are enforcing, creates various exemptions to the mask requirements. (Note: It does not address physical distancing.) It specifies the requirement to wear a face mask at indoor gatherings does not apply to individuals who:
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- Are fully vaccinated persons;
- Are younger than 2 years old;
- Cannot medically tolerate a face mask;
- Are eating or drinking while seated in a designated area or at a private residence;
- Are swimming;
- Are receiving a medical or personal care service for which removal of the face mask is necessary;
- Are asked to temporarily remove a face mask for identification purposes;
- Are communicating with someone who is deaf, deafblind, or hard of hearing and whose ability to see the mouth is essential to communication;
- Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a face mask would seriously interfere in the performance of their public safety responsibilities;
- Are engaging in a religious service;
- Are giving a speech for broadcast or to an audience, provided that the audience is at least 12 feet away from the speaker; or
- Are engaging in an activity that requires removal of a mask not listed in another part of this section, and are in a facility that provides ventilation that meets or exceeds 60 ft3/min of outdoor airflow per person.
In terms of verification of vaccination status, the MDHHS Order says: “A person responsible for an establishment, or an agent of such person, must prohibit gatherings of any kind at their establishment unless the person makes a good faith effort to ensure that all persons at their establishment (including employees) comply with the indoor face mask requirement. For purposes of this section, a ‘good faith effort’ may include any of the following: posting a sign notifying people that wearing a mask is required unless a person falls into a specified exception; asking patrons not wearing masks whether they fall into a specified exception; requiring face masks of all patrons and employees; or any other policy designed to ensure compliance with the indoor face mask requirement.”
Although we are encouraged that MIOSHA seems to want to align its rules with the new MDHHS Epidemic Order and CDC guidance, serious questions remain over when and how MISOHA plans to amend their Emergency Rules. Furthermore, questions remain over how/whether this impacts MIOSHA’s plans to move forward with PERMANENT COVID-19 workplace safety rules, which are scheduled for a public hearing on May 26 at 9 a.m.
The Michigan Chamber will continue to encourage the state to stop the permanent rules process, drop and rescind the Emergency Rules and clarify how the latest CDC guidance impacts the “Vacc to Normal” plan, which ties the easing of restrictions to vaccination plans.
Please contact Wendy Block with any questions at wblock@michamber.com.