MIOSHA penalties impermissible for Executive Order violations

By now, Michigan employers know they need to have a COVID-19 preparedness and response plan when they resume in-person operations. They understand they must provide personal protective equipment (PPE) and make cleaning supplies readily available. But after more than 100 Executive Orders (EOs) related to the coronavirus from Michigan Governor Gretchen Whitmer, understandably, confusion remains.

Confusion won't lead to large penalties

Employers want to do their best to provide a safe working environment for their employees. Often, however, the guidance about best practices from the many EOs as well as the Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) can be conflicting or unclear. For example, can an employer use fans to ventilate the workplace? OSHA guidance referenced in the EOs recommends increasing ventilation and air flow, but CDC guidance (also referenced in the EOs) advises against the use of personal fans in the workplace.

And on top of the confusion, the Michigan EOs prescribe a penalty for violating the reopening standards of up to $70,000 per infraction, stating they fall "within the meaning of the Michigan Occupational Safety and Health Act [MIOSHA]." The Act also calls for jail time of up to three years when there are repeated violations.