RETURN-TO-WORK: WORKPLACE SAFETY PRECAUTIONS DURING COVID-19

Ten Steps all Workplaces Can take to Prevent COVID-19 Exposure

Many Michigan workers are being asked to report to work, either because their employer has determined they support critical infrastructure, they are other essential employees, or otherwise reopened for business.  These include health care workers, first responders, and other critical infrastructure businesses. But also grocery store workers, landscapers and construction workers in regional reopened businesses.  For those who are out at work in public during the COVID-19 outbreak, effective workplace safety is a great concern. Discrimination or retaliation for raising workplace safety concerns is illegal.

These resources are compiled to help lawyers for reopened businesses and their workers navigate the challenge of reopening and coming back to work. Workers deserve solid information on their rights in a re-opened workplace.  If you are personally dealing with workplace questions on how to safely re-open or whether you can return to work you should seek legal advice on the business challenges and workers’ rights laws as applied during the return-to-work phase. 

Additional Blanchard & Walker fact pages provide resources on:

 

Michigan Executive Orders on COVID-19 Workplace Safety

Governor Whitmer continues to tackle the COVID-19 outbreak with emergency response powers granted under Michigan law.  The Governor maintains a COVID -19 website with regular updates. A complete list of Executive Orders Issued by Governor Whitmer is available here.  The impact of the outbreak and sheltering measures can be followed on Michigan Coronavirus Map and Case Count. 

Which Workplaces can Re-open?

Michigan “Safe Start” Reopening Phase 4: Executive Order 2020-110  addresses the procedures and requirements of the partial reopening of businesses in all 8 designated regions in Michigan.  The Governor’s Office has also published Frequently Asked Questions on EO 2020-110.  Re-opened workplaces remain subject to safety measures required under Executive Order 2020-114 and the Agency guidance flowing from the Order.  Any business or operation that violates the rules has failed “to provide a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to an employee, within the meaning of the Michigan Occupational Safety and Health Act, MCL 408.1011. 

  • Some outdoor activities may resume effective immediately, including outdoor fitness classes, athletic practices, training sessions or games, so long as six feet of distance is maintained at all times.
  • Beginning June 4, EO 2020-110 allows for retailers to resume operations, subject to capacity constraints described in EO 2020-114.
  • Beginning June 8, other businesses and operations are permitted to resume operations:
    • local libraries and museums are subject to rules that govern retail stores described in EO 2020-114
    • public swimming pools, so long as they are outdoors and limited to 50% capacity
    • day camps for children
    • restaurants, food courts, cares, bars, and similar businesses, subject to 50% capacity constraints and workplaces standards described in EO 2020-114
  • However, under EO 2020-110, any work that can be done remotely, still must be performed remotely.

Michigan “Safe Start” Reopening Phase 5: Issued on June 5, 2020, Executive Order 2020-115 addresses the continued reopening of businesses. EO 2020-115 moves Regions 6 and 8 into Phase 5 of the Safe Start, while also starting the transition for the rest of the state to move out of Phase 4. Beginning June 10, 2020, more businesses and operations in Regions 6 and 8 may reopen, subject to strict workplace protections of EO 2020-114:

  • gyms
  • hair salons
  • indoor theaters
  • tattoo parlors

As of June 15, 2020, non-essential personal care services, including barbershops, hair salons, and nail salons, may also reopen statewide.

Which Workplaces Are Prohibited from Reopening?

Under Executive Order 2020-110, the following business and places of public accommodation are prohibited from reopening for the time being:

  1. Indoor theaters, cinemas, and performance venues.
  2. Indoor gymnasiums, fitness centers, recreation centers, sports facilities, exercise facilities, exercise studios, and the like.
  3. Facilities offering non-essential personal care services, including hair, nail, tanning, massage, traditional spa, tattoo, body art, and piercing services, and similar personal care services that involve close contact of persons.
  4. Casinos licensed by the Michigan Gaming Control Board, racetracks licensed by the Michigan Gaming Control Board, and Millionaire Parties licensed by the Michigan Gaming Control Board.
  5. Indoor services or facilities, or outdoor services or facilities involving close contact of persons, for amusement or other recreational or entertainment purposes, such as amusement parks, arcades, bingo halls, bowling alleys, indoor climbing facilities, indoor dance areas, skating rinks, trampoline parks, and other similar recreational or entertainment facilities.

Michigan “Safe Start” Reopening Phase 5: Executive Order 2020-115 addresses the continued reopening of businesses. EO 2020-115 moves Regions 6 and 8 into Phase 5 of the Safe Start, while also starting the transition for the rest of the state to move out of Phase 4. Beginning June 10, 2020, more businesses and operations in Regions 6 and 8 may reopen, subject to strict workplace protections of EO 2020-114:

  • gyms
  • hair salons
  • indoor theaters
  • tattoo parlors

As of June 15, 2020, non-essential personal care services, including barbershops, hair salons, and nail salons, may reopen statewide.

What are Employers’ Obligations for Safely Re-opening?

Capacity Constraints and Social Distancing Procedures:Executive Order 2020-114 (rescinding and extending Executive Orders 2020-91 and 2020-97) prescribes minimum requirements for businesses or operations that are permitted to require employees to come to work under Executive Orders 2020-110 and 2020-115. EO 2020-114 also requires all businesses to develop a COVID-19 preparedness and response plan, designate worksite supervisors to execute the plan, and follow other safety procedures and establishes further guidance for specific industries:

  • Businesses or Operations Primarily and Traditionally Performed Outdoors
  • Construction Industry
  • Manufacturing Facilities
  • Research Laboratories
  • Retail Stores, Libraries, and Museums
  • Offices
  • Restaurants and Bars
  • Outpatient Health-Care Facilities, including Clinics, Primary Care Physician Offices and Dental Offices, and Veterinary Clinics
  • Businesses that Provide In-Home Services
  • Businesses Providing Barbering, Cosmetology Services, Body Art Services, Tanning Services, Massage Services, or Other Personal Care Services
  • Sports and Entertainment Facilities, and Places of Public Amusement
  • Gymnasiums, Fitness Centers, Recreation Centers, and Sports and Exercise Facilities and Studios

Long-Term Care Facilities: Executive Order 2020-123 (rescinding and extending Executive Order 2020-95) addresses Health and Safety of Residents and Employees of Long Term Care Facilities, including:

  • Prohibition of eviction or involuntary discharge of a resident for nonpayment
  • Prohibition on denying admission or readmission based on COVID-19 testing
  • Further protections for residents who obtain housing outside of a long-term care facility, including a right to return
  • Procedures related to transfers and discharges of COVID-19-affected residents
  • Requiring employees who test positive for COVID-19 or display any principal symptoms to remain in their place of residence and protecting this employees from discharge

Healthcare Facilities: Executive Order 2020-136 (rescinding and extending Executive Orders 2020-72 and 2020-108) prescribes temporary restrictions on entry into healthcare facilities, residential care facilities, congregate care facilities, and juvenile justice facilities. The Order applies to all healthcare facilities, residential care facilities, congregate care facilities, and juvenile justice facilities and includes:

  • Prohibitions on visitors
  • Health evaluations for all individuals who enter the facility and are not under the care of the facility

All staff members and visitors are required to wear face coverings when indoors or within six feet of another person at all residential care facilities, congregate care facilities, and juvenile justice facilities.

Food-Selling Establishments and Pharmacies: Executive Order 2020-109 (rescinding and extending Executive Order 2020-71) establishes temporary safety measures for food-selling establishments and pharmacies and temporary relief from requirements applicable to the renewal of licenses for the food-service industry. These measures include:

  • Requirement of a face covering for anyone entering a food-selling establishment or pharmacy
  • Dedicated two hours per week of shopping time for vulnerable populations at grocery stores and pharmacies
  • COVID-19 exposure reduction strategies for food-selling establishments and pharmacies
  • Procedure for an employee at a food-selling establishment testing positive for COVID-19
  • Temporary suspension of compliance with licensing requirements

Migrant and Seasonal Agricultural Workers: Executive Order 2020-137 (rescinding and extending Executive Order 2020-111) addresses safety protections for migrant and seasonal agricultural workers, including:

  • preparing a COVID-19 response plan following OSHA standards
  • strict social distancing practices
  • proper sanitation and ventilation of camps
  • healthcare arrangements for COVID-19 suspected and COVID-19 confirmed residents

 

MIOSHA and COVID-19 Workplace Specific Guidance

Michigan Occupational Safety and Health Administration (MIOSHA) within the Department of Labor and Economic Opportunity (LEO)  has launched a new online COVID-19 Workplace Safety site – Michigan.gov/COVIDWorkplaceSafety. The site provides guidance and a toolkit of resources and a reopening checklist to keep workplaces safe as sectors of the state’s economy reopen. MIOSHA also provides workplace guidelines for employers and employees and created a hotline for workers concerned with workplace safety (855-SAFEC19 or 855-723-3219), to answer guideline questions and further protect Michigan’s workforce from the spread of COVID-19. To report health and safety concerns in the workplace, go to www.michigan.gov/MIOSHAcomplaint. The law prohibits retaliation of any kind for reporting safety violations to MIOSHA or to your employer

MIOSHA requires Employers must create a written exposure control plan that includes exposure determination (from low to very high) and outlines measures that will be taken to prevent employee exposure to COVID-19, including as appropriate:

  • Engineering controls
  • Administrative controls
  • Hand hygiene and environmental surface disinfection
  • Personal protective equipment
  • Health surveillance
  • Training

MIOSHA’s best practices that employees need to follow to be vigilant in protecting themselves from exposure to COVID-19 include:

  • Wash hands regularly for at least 20 seconds with soap and water,
  • Limit contact with others by remaining six feet apart,
  • Clean and disinfect frequently touched surfaces and tools routinely,
  • Stay home if you or someone in your household is sick,
  • Avoid touching your eyes, nose or mouth, and
  • Practice self-screenings to check for any symptoms.

As Michigan workplaces begin to reopen,. MIOSHA is producing general information and also industry specific guidelines for specific workplaces:

The Michigan Department of Labor and Economic Opportunity also worked with health officials and industry experts to develop best practice guidelines for understanding and complying with the governor’s executive orders:

MIOSHA investigators are will conduct investigations under specific policies and procedures for handling complaints alleging hazards related to coronavirus (SARS-CoV-2 virus) and coronavirus disease 2019 (COVID-19).

 

EEOC, Disability Rights and COVID-19 

The Equal Employment Opportunity Commission has consolidated information and answered questions about COVID-19 in the workplace. The EEOC will continue to enforce non-discrimination laws during the crisis. The EEOC also posted questions and answers about how the Americans with Disabilities Act, the Rehabilitation Act, and other laws will be enforced regarding COVID-19.

 

OSHA and CDC Workplace Guidance for COVID-19

The US Occupational Safety and Health Agency (OSHA)  has issued new guidance in June as non-essential businesses begin to reopen. The Guidance Document includes the criteria each region should satisfy before each phase of reopening, preparedness guidelines, and the information for individuals and employers during each phase of reopening. The OSHA Reopening Guidance has three phases. Entering each phase requires states or regions to satisfy Gating Criteria, which are standards of symptoms, cases, and hospitals. 

  1. Phase One Reopening is for states and regions that satisfy the initial Gating Criteria to reopen. In Phase One, strict social distancing is suggested, all work that can still be done remotely is encouraged, and some business and operations can reopen but with strict distancing and capacity constraints.
  2. Phase Two Reopening can begin when there is no evidence of a second wave and the Gating Criteria is satisfied a second time. Social distancing and telework are still encouraged in Phase Two, but more business and operations can resume operations.
  3. Phase Three Reopening can start when states and regions satisfy the Gating Criteria a third time, without any evidence of a spike or rebound. In Phase Three, vulnerable individuals can resume public interactions, but social distancing is still suggested. Phase Three also allows for further relaxing of capacity constraints in business and operations.

In addition to Reopening Guidance, OSHA has issued guidance on preparing workplaces for COVID-19, including steps all employers can take to reduce workers’ risk of exposure to SARS-CoV-2 and information on how to develop and implement a COVID preparedness and response plan. The guidance also discusses how to implement workplace engineering controls, administrative controls, and safe work practices.

OSHA guidance also has information for classifying worker exposure.

  • Very High Exposure Risk
    • Those in frequent contact with those known or suspected to have COVID-19
  • High Exposure Risk
    • Those with potential for exposure to known or suspected sources of COVID-19
  • Medium Exposure Risk
    • Jobs that require close contact within six feet of people who may be infected with SARS-CoV-2 but are not known or suspected COVID-19 patients
  • Low Exposure Risk
    • Minimal occupational contact with the public and other coworkers

OSHA also has information for rights for workers who refuse to continue dangerous work. Workers can file a complaint with OSHA at any time, but may not be legally protected if they leave the workplace solely because they filed a complaint. There is a legal right to refuse to work, but only if certain conditions are met. OSHA has suggested steps to take if you believe your workplace is dangerous. You should contact OSHA immediately if an employer attempts to retaliate for your refusal to perform dangerous work.

The CDC has guidance on interim measures for employers to take to protect employees and workplaces. CDC guidance includes information on how to prevent and reduce transmission among employees, how to maintain healthy business operations, and how to maintain a healthy work environment. The CDC also has fact sheets for quick references about COVID-19, including What You Need to Know About COVID-19 and What to Do if You Are Sick.

 

OSHA Industry-Specific Guidance on Workplace Safety

As additional reopened businesses consider calling workers back, OSHA has developed Interim General Guidance on Protecting Workers from COVID-19, as well as specific guidance for industry specific worker groups and their employers. OSHA’s guidance for each industry includes examples of workers categorized by exposure risk levels, engineering controls to make workplaces clean and safe, administrative controls to promote social distancing policies at work, and examples of safe work practices and proper use of personal protective equipment for each industry.

 

Industry-Specific COVID-19 Guidance and Best Practices from Unions and Worker Advocates

The National Employment Law Project (NELP) has been critical of the federal OSHA response and provides a link to union and other worker safety advocates looking out for workers during the crisis. 

The NELP Worker Safety During COVID-19 Factsheet outlines how OSHA has failed in its responsibility to workers by failing to inspect or enforce workplace violations and failing to issue legally-enforceable standards. But all employers covered by OSHA have an obligation to create a workplace free of hazards that cause serious injury or death. Complaints to OSHA can be made through the OSHA Website. Workers complaining to OSHA have whistleblower protections against retaliation from employers under OSHA and the National Labor Relations Act. The AFL-CIO has information about COVID-19, a list of priorities for workers and unions, and information about what the AFL-CIO is currently doing to protect workers’ health, safety and welfare.

Many Unions and other Workplace Safety Advocates are producing additional industry-specific guidance for the public and their members:

 

County Level Guidance on COVID-19 Workplace Safety

Under Executive Orders 2020-110 and 2020-115, Michigan’s phased re-opening is geographically divided into 8 regions to facilitate partial reopening in certain parts. As of June 30, 2020, all regions may reopen most businesses and operations, including retail business, restaurants, and hair salons. All businesses are subject to capacity constraints addressed in Executive Order 2020-114.

Regions 6 and 8 may partially reopen more businesses: gyms and indoor theaters. Region 6 includes Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle, and Emmet Counties. Region 8 includes Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa Counties.

County health departments have local guidance, including but not limited to workplace reopening toolkits for many of the counties in northern Michigan that are beginning to reopen:

Many Michigan workers are being asked to report to work, either because their employer has determined they support critical infrastructure, they are other essential employees, or otherwise reopened for business.  These include health care workers, first responders, and other critical infrastructure businesses. But also grocery store workers, landscapers and construction workers in regional reopened businesses.  For those who are out in public during the COVID-19 outbreak, effective workplace safety is the highest priority. Discrimination or retaliation for raising workplace safety concerns is illegal

[* Thank you to all those who have helped as we have helped and contributed in compiling these resources and ongoing updates of the above resources,  especially Blanchard & Walker Summer Associate Collin Kelly and the law student volunteers at the University of Michigan Law School COVID-19 Corps]