While Michigan is making progress to vaccinate the vast majority of residents against COVID-19, Gov. Gretchen Whitmer’s administration wants to put in place long-term workplace safeguards in case the virus still maintains a presence here.
Earlier this year, the Department of Labor and Economic Opportunity began a formal rulemaking process over “permanent” workplace safety rules that could remain in place after emergency orders expire by law in mid October.
The proposed eight-page rules involve determining COVID-19 exposure risk at worksites, preparedness and response plans, basic infection prevention measures, health screenings and providing personal protection equipment. The proposed rules also include industry-specific requirements, and a provision to promote remote work when possible.
The state first issued emergency rules on Oct. 14, 2020 to govern workplace safety through the Michigan Occupational Safety and Health Administration (MIOSHA). They last six months and can be extended for six months, creating the October 2021 deadline.
“Beyond that, it requires the agency to go into an additional rulemaking process,” said Sean Egan, Michigan’s COVID-19 workplace safety director who oversees MIOSHA. “Knowing that, and not knowing where we will be in October” with the virus necessitates the creation of long-term regulations, he said.
While state officials say permanent rules would provide continuity in the event of a prolonged pandemic with insufficient vaccinations or potential coronavirus variants, business advocates have described the proposal as heavy-handed regulations that would interfere with companies’ day-to-day operations.
“It doesn’t instill a lot of confidence in the business community to say that there’s no light at the end of the tunnel,” said Wendy Block, vice president of business advocacy and member engagement with the Michigan Chamber of Commerce and one of eight voting members of an advisory committee overseeing the draft rules. “We think it’s very inappropriate if we’re no longer under a state of emergency. If anything, our members are asking for more certainty; these proposed rules create more questions.”
Committee process, shifting conditions
Over the past two months, a formal advisory committee made up of four representatives each from labor and management held nearly 10, three-hour meetings to discuss and reach consensus on a proposed set of rules. The committee reached agreement on some aspects of the proposal but deadlocked on several key components, according to committee members. A 4-4 vote on proposed amendments meant they wouldn’t move forward.
The committee also had non-voting technical advisers including the Michigan Licensed Beverage Association, the Michigan Retailers Association and Blue Cross Blue Shield of Michigan.
A May 26 public hearing marks the next step in the months-long formal rulemaking process. The state can review those comments and make updates “where necessary,” Egan said. The proposed rules would then go before the legislative Joint Committee on Administrative Rules for final approval. Egan believes the process could wrap up before the emergency rules expire in October.
At the start of the process, Virginia was the only other state to have enacted permanent COVID-19 workplace safety rules, according to state documents. Egan noted that Oregon and California have each initiated their own permanent rulemaking processes.
“One of the challenges, and certainly in a pandemic, is when you create a draft rule, conditions change,” Egan said. “We’ll have an opportunity to update the draft to make sure it’s in alignment with the ‘Vacc to Normal’ plan and potential federal OSHA standards that may be coming out.”
Additionally, the draft rules include a provision that MIOSHA “shall examine the continued need” for the rules within 21 days after an emergency rule is lifted or expires.
On April 29, Whitmer announced the “MI Vacc to Normal” plan that ties vaccination rates at 55 percent, 60 percent, 65 percent and 70 percent thresholds to further economic reopenings. Egan called vaccinations the “tool to make workplaces truly safe.”
But there’s also mounting skepticism about whether Michigan and the U.S. will reach 65 percent or 70 percent vaccination rates.
“And then what? How long do we have these permanent rules?” Block said. “I think there is some concern about when and if Michigan is ever going to find itself in a situation where we don’t have layers of restrictions.”
Dave Worthams, director of human resource policy for the Michigan Manufacturers Association, said in a statement that Michigan businesses “cannot be handcuffed permanently and compete effectively in the global economy.”
“We need reasonable long-term solutions that recognize the COVID-19 emergency will end at some point in the future,” Worthams said.
Joshua Pugh, spokesperson for the Michigan AFL-CIO, downplayed concerns about the length of the rules.
“The only rules that will stay in place long term are those that are necessary to keep workers safe,” Pugh said in a statement to MiBiz. “The regular rules process does not mean anything will be permanent, it is just another way for the administration to collect input from as many interested parties as possible. Any business that truly values the safety of their workers should welcome the opportunity to be engaged in the rulemaking process.”
“The quickest way for us to lose much of the ground we’ve gained in fighting this virus would be for greedy businesses and bosses to be allowed to cut corners and put the safety of workers at risk, just to make an extra buck,” Pugh added. “We’ve seen what happens when we let down our guard.”
Egan said the state will have multiple opportunities to update the draft rules before they’re finalized if the vaccination targets are met.
Sticking points, agreement
Block said the remote work component was among the notable sticking points during the advisory committee meetings.
According to the draft permanent rules: “The employer shall create a policy promoting remote work for employees to the extent that their work activities can feasibly (e.g., technical, economical, performance) be completed remotely.”
Promoting remote work if possible versus requiring it if in-person isn’t necessary is the key difference between the draft permanent and current emergency rules. Egan also said that “remote work as a strategy to mitigate COVID” continues to be recommended by the U.S. Centers for Disease Control and Prevention and federal OSHA.
“Quite frankly, these are decisions that need to be made between an employer, employees and the union if they’re organized,” Block said. “We think it’s wholly inappropriate for the government to even mandate a long-term policy related to remote work.”
She characterized the process as “pretty frustrating” and “deadlocked” with several 4-4 votes on rule amendments. Without a majority, the proposed rules are the “status quo” of what the state sought in the first place, Block said.
While Egan agreed there “were certainly disagreements,” the agency is gathering input “from all stakeholders, not just certain groups.”
“We’re just using the only tool we have,” Egan said. “We don’t know where we’ll be in October. Our hope is we’re at the tail end of this and won’t need much, but we need to prepare for whatever we need.”