Gov. Whitmer Pushes MIOSHA to Establish Permanent COVID-19 Rules

  • by:
  • Source: UncoverDC
  • 09/19/2023

On May 15, following the new guidance from the Centers for Disease Control (CDC), Michigan Governor Gretchen Whitmer authorized the state's health department to modify its gatherings and face mask mandate to exempt people who have been fully vaccinated against COVID-19. Meanwhile, the Michigan Occupational Safety and Health Administration (MIOSHA)—currently attempting to establish indefinite COVID-19 rules—announced on Monday that it plans to update COVID-19 workplace regulations to match the CDC while it strives to implement permanent restrictions. 

The CDC's sudden change in policy disrupts Whitmer's recent mask update, as reported by UncoverDC, which declared that once her state reaches a 70 percent vaccination rate, the Michigan Department of Health and Human Services (MDHHS) extensive gatherings and face mask mandate will be lifted—unless unforeseen circumstances appear, such as vaccine-resistant variants.

Concurring with Whitmer's 70 percent vaccination directive, the MIOSHA, whose temporary emergency workplace rules expire on Oct. 14 (and, per state law, cannot be extended again). Whitmer continues to push for permanent workplace COVID-19 rules arguing they are "one of the last tools in its toolbox to protect workers from COVID-19" if the pandemic is ongoing after the provisional rules expire. According to the Small Business Association of Michigan (who is opposed to making COVID-19 rules permanent), some of the included rules are:

  • The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.
  • Mandates businesses to require customers to wear face coverings
  • Prohibits employees from sharing equipment and requires employers to “increase facility cleaning and disinfection.”

To initiate the procedure to make Whitmer's temporary emergency COVID-19 rules permanent, on Mar. 19, MIOSHA began the formal rulemaking process (authorized by the Administrative Procedures Act) by submitting a Request for Rulemaking to the Michigan Office of Administrative Hearings and Rules. MIOSHA established a Standard Advisory Committee to work alongside the agency in preparing the Draft Rules, which were recently filed with the Michigan Secretary of State

Of great concern is the fact there is next to nothing in the language of the bills that would prompt the removal of restrictions should COVID-19 conditions improve. Critics say businesses would be forced to rely on a state agency that has imposed strict fines throughout the pandemic. Between August of last year and February, under Whitmer's directive, over 120 businesses received pandemic-related workplace citations worth approximately $325,100. More than a dozen have appealed, asserting that the fines are the last remains of Whitmer's unconstitutional emergency orders. The absence of any guarantees for withdrawing the draconian rules is a source of contention for business organizations and Republican legislators, who acknowledge the agency has lost all credibility.

MIOSHA's Standard Advisory Committee

In an Apr. 13 statement, the Michigan Chamber of Commerce, Michigan Licensed Beverage Association, Michigan Manufacturers Association, and Michigan Retailers Association pushed back against MIOSHA, expressing major concerns over the agency's plans to move forward with extending the "overly-restrictive COVID-19 workplace rules" permanently. The business organizations maintain the "one-size-fits-all" permanent rule set could conflict with CDC guidance, negatively impact jobs and the economy, and keep the government's thumb on decisions best left in the workplace between employers and employees. Wendy Block, Vice President of Business Advocacy and Member Engagement for the Michigan Chamber of Commerce and a voting member of the Committee, stated:

"From the beginning, it was clear the goal was to push through a recommended rule set that endorsed the status quo. With a Committee made up of four voting union representatives and four voting representatives of management, and a requirement that it would take at least five votes to make any changes to the current COVID-19 Emergency Rules, the deck was stacked against change from the beginning."

Dave Worthams, Director of Human Resource Policy for the Michigan Manufacturers Association, who served as the non-voting chairman of the Committee and Technical Advisor, stated:

"We need reasonable long-term solutions that recognize the COVID-19 emergency will end at some point in the future. Unfortunately, there seemed very little willingness to find solutions. Michigan businesses cannot be handcuffed permanently and compete effectively in the global economy."  

Michigan Licensed Beverage Association Executive Director Scott Ellis, who served as a Technical Advisor to the Committee (and was a non-voting member), noted that if the agency moves forward with these rules as written, they will further damage the state's business climate, adding: 

“The Committee debated numerous proposals to follow the science and CDC guidelines, but the proposed changes were rejected because of a lack of ‘consensus.' This process did not reflect reasonable discussion or decision-making."

Committee member Amy Drumm, Vice President, Government Affairs for Michigan Retailers Association, who served as a Technical Advisor (and was a non-voting member), expressed frustration with the entire committee procedure, declaring:

“We are extremely disappointed in the process and the outcome. Although we were hopeful that this committee could discuss reasonable updates to keep workplaces safe to operate while being responsive to the frequently changing requirements necessitated by the COVID-19 pandemic, after four weeks and nearly 20 hours of meetings, we are back to square one.”

The Standard Advisory Committee consisted of eight voting members, including four union representatives (Michigan Nurses Association, AFSCME Local 875, West Michigan Plumbers, Fitters and Service Trades Local 174, and the Michigan Building and Construction Trades Council) and four business representatives (National Electrical Contractors Association, Associated General Contractors of Michigan, Michigan Chamber of Commerce, Michigan Health & Hospital Association). Additionally, several companies served as "technical" advisors and were non-voting members, which included: CAO Consulting LLC, The Christman Co., Michigan Licensed Beverage Association, Michigan Retailers Association, Michigan Manufacturer's Association, and Blue Cross Blue Shield of Michigan.

Taking a Deeper Look 

UncoverDC spoke to Michigan resident Kristen Meghan Kelly, a Sr. Industrial Hygienist, about MIOSHA's proposed permanent implementation of the state's emergency COVID-19 rules. An expert in her field, Kelly explained that OSHA governs by controlling health hazards at the source. And they combat health hazards by using designated processes and tasks. To put it simply—OSHA regulates hazards, processes, and tasks—NOT people. People are typically neither viewed as the hazard nor controlled at the source. To be more precise, people are generally not viewed as the source of a health hazard unless within a healthcare facility. The rest of the general industry does not view people as a hazard, it's processes and tasks.

Kelly noted that the current mask argument goes against OSHA standards and controls related to Personal Protective Equipment (PPE), specifically eye and face protection. By classifying cloth masks as "source control" instead of PPE, OSHA avoids violating its standard. 

Take Action To Stop Permanent COVID-19 Rules

Importantly—the Michigan Department of Labor and Economic Opportunity and the MIOSHA have a joint public hearing (learn more HERE) scheduled for May 26. The critical decision facing the departments is whether to follow the demand from the Whitmer administration to make many current COVID-19 workplace rules permanent, including workplace and business setting mask rules and working from home rules.

Although there is a great deal of fear attached to MIOSHA's proposal, Kelly points out that people need to understand any permanent change to the rule must go through a public review and then through the Michigan Legislative Council's Joint Committee on Legislative Rules (JCAR), all of which is a long process. JCAR has at least six conservative committee members who many believe would reject the rules change. 

In anticipation of the May 26 hearing, there are several ways for concerned citizens to get involved and share their public comments and reviews and for business leaders to explain how they are apprehensive of the ensuing liability should the emergency rules become permanent. Per Sen. Bumstead's website, "Don’t wait to share your concerns with the governor—the public comment period ends May 26!"

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