New MIOSHA guidance requires COVID-19 remote work policy

The Michigan Occupational Safety and Health Administration (MIOSHA) defines the workplace safeguards employers must implement in response to the COVID-19 pandemic and investigates their failures to comply, using citations and fines as its most convincing enforcement mechanisms. On October 14, the agency issued emergency rules (ERs) adopting many of the guidelines employers came to know under Governor Gretchen Whitmer’s now-invalidated Executive Orders.

What new remote work rule covers

ER 5(8), the “remote work rule,” is significant: “The employer shall create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.” The former standard more generally stated, “any work capable of being performed remotely . . . must be performed remotely,” leaving many employers to wonder what constitutes “feasibly.”

MIOSHA initially released guidance on the feasibility standard, suggesting employers be “thoughtful” and “reasoned” in their determinations of work capable of remote or in-person performance and agreeing, in general, it “will not focus on evaluating the business’ judgment of feasibility.”

Then, on November 6, the Michigan Department of Health and Human Services (MDHHS) recommended a stricter interpretation of the remote work rule, preferring for employers to permit in-person work only when “a worker is unable to physically complete required job tasks from a remote setting,” denouncing the interpretation that the feasibility standard ought to consider “productivity” or “efficiency.”