Businesses across the United States, and around the world, are dealing with the COVID-19 crisis in a variety of ways. In recent days and weeks, Michigan has risen on the list of the most affected states. In response, Michigan Gov. Gretchen Whitmer has issued a series of orders impacting Michigan businesses as well as private individuals. The most recent order, Executive Order 2020-42 (Order), which rescinds Order 2020-21, took effect on April 10. Each order has successively increased restrictions and imposed additional obligations. The current Order is effective through April 30, 2020 — with the caveat that it could be extended or superseded by a subsequent order.
According to the Order, “[b]usinesses and operations that employ critical infrastructure workers may continue in-person operations, subject to [several] conditions.” Those conditions, as well as the definition of “critical infrastructure workers” may be reviewed in detail in section 5 of the Order.
Those businesses that do continue in-person work “must adhere to sound social distancing practices and measures, which include but are not limited to . . . [d]eveloping a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration.” Note that while the OSHA guidance document was not intended to create new, enforceable regulations, Governor Whitmer’s Order has made it mandatory for businesses to create a preparedness and response plan based on the OSHA guidance. Moreover, the governor’s Order directs that the plan must be available at a company’s headquarters or worksite.
Neither OSHA nor the Michigan Occupational Safety and Health Administration (MiOSHA) has rules or regulations specific to COVID-19. However, the OSHA guidance document takes the user through a number of existing, potentially applicable OSHA requirements as well as common sense measures that can be implemented. The guidance also defines (in the context of potential COVID-19 exposure) workers whose exposure risk is “low,” “medium,” “high” and “very high” and includes protective and proactive measures recommended for each category. These measures may include engineering controls, administrative controls, personal protective equipment (PPE) or a combination of two or more.
Because conditions are changing so rapidly, the governor’s Order does not define the precise content required in the preparedness and response plan. Rather, it directs companies to create plans that are “consistent with” the OSHA guidance. We anticipate that MiOSHA will exercise discretion in enforcing the Order but it is important — both for purposes of compliance with the Order and to protect workers — that each company prepare and make available such a plan. It is also recommended that employers review with their workers the existence and location of the plan and provide any training that may be appropriate.
Finally, employers must remember that OSHA (and MiOSHA) have in their enforcement arsenal something known as the “General Duty Clause” (GDC). The GDC requires that each employer provide a safe workplace that is “free from recognized hazards.” This intentionally vague provision allows OSHA or MiOSHA to take enforcement action where no specific rule or regulation applies but the agency believes an employer has failed to protect its workers from a recognized hazard.
