In the wake of the Supreme Court's ruling two weeks ago, the Michigan Department of Health and Human Services (MDHHS) and now the Michigan Occupational Safety and Health Administration (MIOSHA) have moved to fill the regulatory gap left by the long chain of now rescinded executive orders. The most actions by these state departments are an October 9 epidemic order from MDHHS and an October 14 set of emergency rules from MIOSHA. The MDHHS order adds workplace protections, contact tracing responsibilities, and some additional details to their earlier directives around gathering limits and facial coverings. The MIOSHA order reinstates many of the workplace safety elements from the now defunct executive orders, including the requirement for employers to have a preparedness plan in place.
In a pair of earlier articles, MASSP highlighted the requirements imposed by an October 5 MDHHS order around gathering limits, face coverings, and organized sports and the "school associated case" reporting requirements from the MDHHS October 6 order. These requirements have not changed and the articles are still accurate. Additionally, MDHHS has put together a helpful infographic and a fact sheet that you can use as a reference.
With that in mind, let's review the new elements that Principals will want to be aware of...
Workplace Protections and In-Person Work
The MDHHS order prohibits workplace gatherings unless:
- Except in Region 6, the gathering is "strictly necessary to perform job duties"
- Employees not otherwise required to wear a face covering can maintain six feet of distance from others, and
- Employees not otherwise required to wear a face covering do not occupy same indoor space (e.g. conference room, bathroom, hallway)
Additionally, the MIOSHA rules require employers to "create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely." The MIOSHA rules do not provide an exception for Region 6. Districts that are back in session face to face clearly have need for employees to work in-person, but for districts that are fully virtual, it may be worth considering what impact these new orders could have if you are currently requiring staff to report to the building in-person.
Districts may also need to consider how to handle workplace gatherings and use of common areas by "employees not otherwise required to wear a face covering" (e.g. employees who cannot medically tolerate a face mask or qualify for another exception).
If schools are requiring staff to report in-person, the MDDHS order requires a daily self-screening protocol that includes at least a questionnaire covering the symptoms of COVID-19 and "suspected or confirmed exposure to people with possible COVID-19." In addition, the MIOSHA rules require that these screenings include temperature checks "if possible."
Under the MIOSHA rules, employers must "require workers who are sick not to report" or to "work in an isolated location." The MDHHS order says that employees subject to "a recommendation to isolate or quarantine" may not be present at a gathering at work until told they can return to work "by a health or public health professional," or meet all of the following conditions:
- Employee is fever-free for 24 hours without the use of fever-reducing medications,
- 10 days have passed since their symptoms first appeared or since they were administered a COVID-19 test that yielded the positive result, if applicable; and
- The employee's other symptoms have improved.
For certain facilities, the MDHHS order requires contact tracing protocols to be followed. Those facilities are:
- All businesses or operations that provide barbering, cosmetology services, body art services (including tattooing and body piercing), tanning services, massage services, or similar personal care services;
- Sports and entertainment facilities (except outdoor, unticketed sporting events), including arenas, cinemas, concert halls, performance venues, sporting venues, stadiums and theaters, as well as places of public amusement, such as amusement parks, arcades, bingo halls, bowling centers, skating rinks, and trampoline parks;
- Gymnasiums, fitness centers, recreation centers, exercise facilities, exercise studios, bowling centers, roller rinks, ice rinks, and like facilities.
For these facilities, you must maintain "accurate records, including the date and time of entry, names of patrons, and contact information" and must deny entry to "any visitor who does not provide, at a minimum, their name and phone number."
For most Principals, this is likely most pertinent as it applied to school sporting events (except outdoor, unticketed sporting events), though there are other possible implications. For example, if your school is allowing use of school facilities like the weight room after school hours, you should likely be keeping an entry and exit log. If your district runs a cosmetology program, it may be worth checking with your local legal counsel to see if these requirements apply there as well.
For Principals that have been wondering what will happen with preparedness plans in the wake of the Supreme Court decision, MIOSHA has given you an answer: all employers are once again required to have preparedness plans in place and are once again subject to requirements related to hygiene and sanitation, PPE, and staff training.
Immediately after the MIOSHA order was released, MASSP reached out to the Governor's office and officials within MIOSHA to ask what seemed like the most pressing questions:
- Since school districts all already have preparedness plans, do they need to develop yet another new plan?
- Are there any new or changed requirements in these rules that will require changes to their existing preparedness plans?
- If districts want to change their local preparedness plan, are there any additional areas of flexibility these rules allow?
So far, we have not gotten an answer.
What we do know that MIOSHA put together a number of resources on their website that schools can use including a sample preparedness plan, easy to review checklist-style summary of the new rules, PK-12 specific slide deck, and – of course – the full ruleset.
There are still questions that MASSP has received in the wake of the Supreme Court decision for which we do not have answers. For example, with the executive orders being nullified, do we still have a MI Safe Start Plan in place with phases? If yes, where should we look to reinforce with our communities what phase we are in?
Importantly, we also don't know what is going to happen next. We've seen a flurry of new regulations pass in the last two weeks to reinstate significant components of the now defunct executive orders. At this point, it seems possible that more could be coming. We know that schools have largely been advised to hold tight and continue to enforce their local Preparedness Plans. For now, that still seems the best advice.