MAC provides legal review of federal vaccine mandate

In response to questions from members, MAC reached out to the firm of Cohl Stoker & Toskey for information regarding how the federal vaccine mandate on employers relates to county governments.

Below is the response, reproduced in its entirety. Members, of course, are also advised to consult with their corporation counsels on all legal matters:

On November 4, 2021, the Federal Occupational & Safety Administration (OSHA) issued its Emergency Temporary Standard (ETS) to protect unvaccinated workers from the risk of contracting COVID-19 at work.  Employers must require that (1) employees be vaccinated against COVID-19, or (2) be tested every seven days and wear a face covering if unvaccinated. 

The ETS applies to all employers with more than 100 employees, but does not apply to

(a) employees who do not report to a workplace where other individuals such as coworkers or customers are present, (b) employees while they are working from home, or (c) employees who work exclusively outdoors.

The ETS requires covered employers to develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead establish, implement, and enforce a policy allowing employees who are not fully vaccinated to elect to undergo weekly COVID-19 testing and wear a face covering at the workplace.

The ETS requires employers to determine the vaccination status of each employee, obtain acceptable proof of vaccination, maintain records of each employee’s vaccination status, and maintain a roster of each employee’s vaccination status. Employers must also support vaccination by providing employees reasonable time, including up to four hours of paid time, to receive each vaccination dose, and reasonable time and paid sick leave to recover from the side effects of vaccination.

The ETS requires employers to ensure that each employee who is not fully vaccinated is tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer). The ETS does not require employers to pay for any costs associated with testing. However, employer payment for testing may be required by other laws, regulations,

or collective bargaining agreements. In addition, nothing prohibits employers from voluntarily assuming the costs associated with testing.

Employers must also ensure that each employee who is not fully vaccinated wears a face covering when indoors or when occupying a vehicle with another person for work purposes.

The ETS is effective immediately upon publication in the Federal Register on November 5, 2021.  To comply, employers must ensure all provisions are addressed in the workplace by Dec. 5, 2021 (other than testing for employees who have not completed their entire primary vaccination doses), and by Jan. 4, 2022, for testing of employees who have not received all doses required for a primary vaccination.

It is important to note that the Federal OSHA does not directly apply to Michigan employers. Rather, Michigan has an approved State Plan of its own under the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq.

However, even though the ETS does not directly apply to Michigan, under MIOSHA, MCL 408.1014(5), within 10 working days after a new Federal OSHA Standard is adopted or promulgated by the U.S. Department of Labor, the Director of the Michigan Department of Labor and Economic Opportunity is required to initiate the processing of an administrative rule that is substantially similar to the Federal OSHA Standard. The Director may also promulgate an MIOSHA Emergency Temporary Rule under MCL 408.1021(2).

Adoption of this ETS, or an ETS that is at least as effective as this ETS, by State Plans must be completed within 30 days of the promulgation date of the final Federal rule, and State Plans must notify Federal OSHA of the action they will take within 15 days.

Thus, although the ETS does not directly to Michigan, the substance of the ETS is required to be processed as an administrative rule in Michigan.  MCL 408.1014(5); MCL 408.1021(2). 

MIOSHA applies to all places of employment, except domestic employment and mines, MCL 408.1002(1), and applies to all employers, including the State or a political subdivision (including Counties) that employ one or more persons.  MCL 408.1005(2); MCL 408.1006(2); MCL 408.1009. MIOSHA applies to the judicial branch of government.