For those who are working in public during the COVID-19 outbreak, effective workplace safety is a great concern. For everyone’s safety, violations should be reported to local public health departments and appropriate state agencies. Discrimination or retaliation for raising COVID-19 workplace safety concerns is prohibited.
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 to your situation.
Additional Blanchard & Walker fact pages provide resources on:
- The Courts and COVID-19
- Unemployment Benefits and COVID-19
- COVID-19 Employment Law Insights and Resources
Michigan Law and COVID-19 Workplace Safety
Executive Orders: A narrow decision by the Michigan Supreme Court has invalidated many of Governor Whitmer’s Executive Orders issued to tackle the COVID-19. However, some of those orders will survive if they derive from executive powers outside of the state of emergency. A complete list of the Executive Orders Issued by Governor Whitmer is still available here. The impact of the outbreak and the sheltering guidance to combat it can be tracked and measured: Michigan Coronavirus Map and Case Count.
In the absence of the Governor’s emergency powers, the Michigan Department of Health and Human Services (MDHHS) and Michigan Occupational Health and Safety Administration (MIOSHA) have stepped up and issued orders under their own regulatory authority to help protect Michigan workers.
PUBLIC GATHERINGS AND MASK USE: Michigan Department of Health and Human Services has issued regular updates and emergency orders, including the most recent December 18, 2020 Emergency Order (effective December 21, 2020) significantly restricting public gatherings, team sports and in-person instruction for high school students across Michigan through January 15, 2021.
- Epidemic Order Infographic
- Epidemic Order Social Gathering Guidance
- Epidemic Order Safe Social Pods Guidance
WORKPLACE SAFETY: Michigan Occupational Health and Safety Administration on October 14, 2020 issued Emergency Safety Rules for workplace safety. As before, all workplaces are required to have a COVID-19 response plan, but that plan now must include “a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”
In October 2020, the Michigan Legislature finally acted to the first new laws to clarify the rights and obligations of Michigan workers and businesses.
EMPLOYMENT RIGHTS: Public Act 238 of 2020 addresses legal rights for employees experiencing Covid-19 related symptoms, and to protect those whistleblowers who raise Covid-19 safety concerns. Under the law an employer is prohibited from discharging, disciplining, or otherwise retaliating against an employee who does any of the following:
- Stays home from work because they contracted COVID-19 or because they are experiencing the principal symptoms of COVID-19 even if they later test negative (the employee must seek a test within three days).
- Opposes a violation of this act.
- Reports health violations related to COVID-19.
- * The Act does not apply to certain healthcare workers, correctional facility workers, first responders and others.
BUSINESS IMMUNITY: Public Act No 236 of 2020 (Effective October 22, 2020), the “COVID-19 response and reopening liability assurance act” purports to limit workplace liability for COVID-19 related lawsuits. Under the law, businesses or employers are immune from COVID-19 related lawsuits, but only if it has complied with all relevant laws and government guidance in effect at the time (including all executive orders that had not been denied legal effect at the time, state agency guidance, or local public health orders).
MIOSHA and COVID-19 Workplace Specific Guidance
Michigan Occupational Health and Safety Administration (MIOSHA) issued October 14, 2020 Emergency Safety Rules for workplace safety. As before, all workplaces are required to have a COVID-19 response plan, but that plan now must include “a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.”
MIOSHA’s COVID-19 Workplace Safety 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. Employees fired for raising safety concerns must file within 30 days of the termination or other adverse action and can do so by calling MIOSHA at 313-456-3109 or faxing the online form.
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
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:
- Construction and Outdoor Operations
- Outpatient Healthcare
- Research Laboratories
- Restaurants and Bars
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 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.
COVID VACCINATION: New guidance from the EEOC in December 2020 answers a question that has been on the minds of many workers: Can my employer require me to get vaccinated? The answer is probably yes, although this is likely to raise a host of individual accommodations rights questions for individuals with disabilities. Read the EEOC Covid Vaccination Guidance here.
OSHA and CDC Workplace Guidance for COVID-19
The US Occupational Safety and Health Agency (OSHA) issued guidance in June as non-essential businesses began 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.
- 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.
- 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.
- 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.
- Airline operations
- Border protection and transportation security
- Business travelers
- Correctional facility operations
- Emergency response and public safety
- Environmental (i.e., janitorial) services
- In-home repair services
- Meat and poultry processing
- Postmortem care
- Retail operations
- Solid waste and wastewater management
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:
- Automotive: For manufacturing workplaces, the United Auto Workers has information about the Big 3’s resumption of production for their members, including a Big 3 Questions and Answers page.
- Child Care: California’s OSHA has information about child care programs, including employee training, guidance, and specific procedures to prevent the spread of COVID-19 in child care facilities
- Construction: the Michigan Department of Labor and Economic Opportunity issued construction guidance that includes eight steps for employers to keep their workers safe.
- Dental Offices: the American Dental Association has information as dentist offices reopen, including an Interim Return to Work Toolkit.
- Electrical: for electrical and communications work, the Communications Workers of America has information as well, including information for CWA members and frequently asked questions.
- Grocery Stores: for grocery store workers and shoppers, the UFCW has information for how to protect workers and shoppers at grocery stores. UFCW’s guidance includes information for workers, the actions UFCW has been taking, and information for shoppers to keep grocery workers safe while customers are inside the store.
- Healthcare Providers: the Michigan Department of Health and Human Safety sent guidance to all licensed practitioners in Michigan on May 3, 2020.
- Hospitals: for hospital staff, the National Nurses United has information about COVID-19, including safety requirements for hospitals and the National Nurses Union Position on Public Reopening.
- Hotel and Hospitality: For hotel and hospitality workers, the American Hotel and Lodging Association has information, including the latest stay safe guidelines. The Michigan Restaurant and Lodging Association released a step-by-step Roadmap to Reopening.
- Legal Practice: the State Bar of Michigan has created a tool kit for law offices and printable signs for posting.
- Restaurant Workers: the National Restaurant Association has guidelines that cover food safety, cleaning and sanitizing, employee health monitoring and personal hygiene, and social distancing. The FDA has also issued Best Practices for food-related businesses. The Michigan Restaurant and Lodging Association released a step-by-step Roadmap to Reopening. The CDC also produced a graphic to assist food service business in making reopening decisions.
- Service Industry: the SEIU has information about COVID-19, fact sheets for workers, frequently asked questions, and a 10-step guide to prevent the spread of COVID-19. SEIU information is in both English and Spanish.
- Teachers: the American Federation of Teachers has information about your rights during a public health emergency, along with questions and answers about COVID-19, employment, safety, and benefits for teachers.
- Transportation: for transportation work including emergency responders, the Teamsters have issued best practices for worker-friendly employment policies and employer responsibilities. Teamsters have also issued information about COVID-19 and suggested employment practices for specific industries, including healthcare workers, first responders, EMS, solid waste and recycling, wastewater workers, airline members, commercial drivers, transit operators, law enforcement, and correctional facilities.
County Level Guidance on COVID-19 Workplace Safety
Almost all local health departments have issued county level COVOD-19 safety guidance for business and other public places:
- Alcona, Iosco, Ogemaw, and Oscoda Counties, Reopening Guidance, Business Preparedness Plan Template
- Alger, Luce, Mackinac, and Schoolcraft Counties, Reopening Guidance
- Allegan County
- Alpena, Cheboygan, Montmorency, and Presque Isle Counties, Industry Guidances
- Antrim, Charlevoix, Emmet, and Otsego Counties, Re-Engagement Resources, Checklist for Reopening
- Arenac, Clare, Gladwin, Isabella, Osceola, and Roscommon Counties, Business Toolkit, Checklist for Reopening
- Baraga, Gogebic, Houghton, Keweenaw, and Ontonagon Counties
- Barry and Eaton Counties, Business Information, Checklist for Reopening
- Bay County
- Benzie and Leelanau Counties
- Berrien County
- Branch, Hillsdale, and St. Joseph Counties
- Calhoun County
- Chippewa County, Business Toolkit
- Clinton, Gratiot, and Montcalm Counties, Workplace Toolkit
- Crawford, Kalkaska, Lake, Manistee, Mason, Mecosta, Missaukee, Newaygo, Oceana, and Wexford Counties, Guidance for Reopening Checklist for Reopening, Business Toolkit
- Delta and Menominee Counties, Checklist for Reopening
- Genesee County, Reopening Guidance
- Grand Traverse County, Checklist for Reopening
- Huron County, Business Response Center
- Ingham County (On June 29, 2020, Ingham County Health Department issued an Emergency Order further restricting capacity at food-selling establishments due to a recent spike in new cases).
- Ionia County
- Jackson County
- Kalamazoo County
- Kent County
- Lapeer County, Business Response Center
- Lenawee County, Resources for Businesses and Employers
- Livingston County, Interim Guide to Reopen
- Macomb County
- Marquette County, Guide to Reopen, Reopening Checklist
- Midland County
- Monroe County
- Muskegon County
- Oakland County, Business Relief Information, Worker Relief Information, Reopening Toolkit
- Ottawa County
- Saginaw County, Guide to Reopen
- Sanilac County, Business Response Center
- Shiawassee County, Resources for Businesses and Employers
- St. Clair County, Employer Guidance
- Tuscola County, Business Response Center
- Van Buren and Cass Counties, Guide to Reopen
- Washtenaw County, Resources for Businesses and Employers, Guide to Reopen, Frequently Asked Questions
- Wayne County, Workplace Toolkit
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]