Many members are asking how the recent ruling by the Michigan Supreme Court, which essentially invalidates the Governors’ Executive Orders (EO’s), will impact job sites. The short answer is: it won’t.
MIOSHA is issuing fines to contractors and businesses that were driven by the EO’s and issued under the General Duty Clause that states that an employer is obligated to provide a workplace to employees “free from recognizable hazards”. To be even clearer, a General Duty violation means that no specific rule exists to cover the issue at hand. That said, everyone should understand that COVID is a recognizable hazard. In theory, MIOSHA did not even need the EO’s to start enforcing that which employers should do to protect employees. The EO’s provide a justification for issuing fines for those who choose to ignore the issue.
The other side of the coin is this: MIOSHA will have an uphill battle on the issue at the appeal level. General Duty Clause violations are considered serious from a designation standpoint. There is no such thing as an other-than-serious violation within this category; thus, eliminating wiggle room regarding the declassification of the violation. However, a large burden of proof will be required by MIOSHA since no promulgated rules exist, and the Attorney General’s office seems unwilling to litigate COVID-related cases based on recent news reports. Appeals are time-consuming, and one of this nature will most certainly have to go in front of an Administrative Law Judge, then to Circuit Court if MIOSHA is adamant on upholding these types of citations. Sooner or later simple economics will kick-in. To date, MIOSHA has only issued COVID-related citations to one MITA member that centered on employees working within six feet of each other without wearing masks.
MITA has been on enough job sites this summer to understand that COVID-related procedures are all over the board. If you need a policy, we have it. If you need posters, we have them. As in everything you do on a job site, the main question you should ask yourself is: “Are our procedures in the best interest of our employees and defendable?”
For more information, contact MITA’s Vice President of Membership Services Rob Coppersmith at robcoppersmith@thinkmita.org, MITA’s Director of Safety and Compliance Greg Brooks at gregbrooks@thinkmita.org, or call the MITA office at 517-347-8336.
