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

Posted on by Blanchard & Walker
Ten Steps all Workplaces Can take to Prevent COVID-19 Exposure

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:

 

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, as of May 15, 2021 most mask requirements have been lifted for vaccinated people, both outdoor and indoor.  This leaves individual businesses and public places with a lot of discretion on how to enforce mask-wearing.   According to the May 15, 2021 Order, businesses must make a “good faith effort” to make sure unvaccinated people wear masks. A “good faith effort,” can be any of three options: Put up signs to say unvaccinated people must still wear masks, ask customers if they are vaccinated (or have any other exemption) or simply require everybody to wear masks.  To read the full order, click here.

WORKPLACE SAFETY: Michigan Occupational Health and Safety Administration on October 14, 2020 issued Emergency Safety Rules for workplace safety. Workplace safety guidance from the CDC and MIOSHA is rapidly changing.  Click here to visit MIOSHA COVID Safety Guidance and Frequently Asked Questions.

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’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
  • 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 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. 

  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

Almost all local health departments have issued county level COVOD-19 safety guidance for business and other public places:

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]