MIOSHA dismisses COVID-19 workplace citation against city of Port Huron

The state has taken action to dismiss a year-long workplace citation against the city of Port Huron.

The move comes after a statement last month from a compliance official whose comments officials say help prove the city followed proper emergency protocols at the start of the pandemic.

Allegations that the city violated COVID workplace rules were first launched in the fall of 2020 by the Michigan Occupational Safety and Health Administration.

In an email to city council members last week, City Manager James Freed said he had asked the attorney general’s office to dismiss the case. A dismissal order was issued by the state office for administrative hearings and rules on October 21, however.

On Monday, Freed said it had been “scary” for staff earlier in the pandemic to report to work in person, but was proud of their response.

He said they had been “quite disheartened” by the original quote and that the state “refused to drop the request,” approving denials in previous attempts to challenge the matter.

“We worked hard to play by the rules, and we did,” said Freed. “We spent almost $ 150,000 cleaning the facilities. All town facilities, microbial and police cleaning vehicles, and fire and first responder vehicles. We purchased a significant amount of (personal protective equipment) and hand sanitizer. We provided all of our staff with PPE and asked them to wear it in accordance with health rules and guidelines. “

“… We installed plexiglass. I mean, you walk through town hall and you can physically see the changes we’ve made. We take this very seriously. So when you’re accused of something you didn’t do, we won’t fix it. We will allow due process, and all we asked for was due process and after due process the evidence showed that we are in compliance and that we did not break the rules. “

MIOSHA initially fined the city $ 6,300 for failing to require employees to wear face covers, keep and keep records of daily self-test entry protocols, and train employees on the virus.

The city quickly challenged the fine based on the Michigan Supreme Court’s earlier opinion overturning Gov. Gretchen Whitmer’s emergency orders before also rejecting a settlement offer earlier in the year that slashed the fine to $ 3,780.

Freed estimated that the city spent between $ 10,000 and $ 15,000 to fight the MIOSHA citation. In the past, he has been blunt about the state’s response, keeping the fight against violations perhaps not a luxury for other entities or companies that have been cited – and likely paid. the fine less in advance – could afford.

“MIOSHA maintains a robust, multi-level appeal process that reviews contested safety and health citations on a case-by-case basis. MIOSHA considers many factors in consultation with our legal counsel to determine an appropriate outcome for the citation (s). Any proposed outcome between MIOSHA and a cited employer regarding a disputed citation must be reviewed and approved by the Health and Safety Compliance and Appeal Board before becoming final, ”Erica Quealy, deputy director of communications for the Michigan Department of Labor and Economic Opportunity. , said in an email.

“The COVID citation challenged by the City of Port Huron, and any proposed resolution of the citation, is currently subject to further review and approval by the Health and Safety Compliance and Appeal Board. Due to the ongoing nature of the appeal process, MIOSHA is currently not authorized to provide further information regarding the details of this case.

In general, COVID-related citations go through the same appeal process as other citations, and this review process resulted in a previous rejection of a COVID-19 citation against an employer. However, there are many reasons that can lead to the rejection of a MIOSHA Citation. The dismissal of a COVID-19-related citation does not constitute a conclusion regarding constitutional challenges that have already been raised regarding COVID-19 governor’s orders in other lawsuits. On the contrary, the rejection of any MIOSHA citation during the appeal process is a demonstration that the process is working as intended to allow employers a fair and objective review of their citations.

“MIOSHA takes seriously its obligation to protect Michigan workers from safety or health hazards in the workplace and to objectively investigate allegations of workplace safety or health hazards. work when employee complaints are filed.

Deposition on original Port Huron workplace quotes becomes accurate

Matthew Hartman, the state inspector who appeared at the Port Huron municipal office center last year, voiced the city’s concerns in an Oct. 12 deposition.

Todd Shoudy, the town’s lawyer, questioned him at length about the nature of each alleged breach of protocol, the interim emergency state orders under which they were alleged – orders later declared unconstitutional – and other procedural points in its inspection process.

At one point, according to the transcripts, Hartman admitted to using the state’s now unconstitutional executive orders as a measure to determine violations against the city rather than other state or federal recommendations or standards.

Shoudy asked, “Am I correct that the city has not violated any rule, standard or ordinance promulgated or issued under MIOSHA?” “

Hartman replied, “I don’t know of any – well, that’s right.”

The inspector was tasked with checking city protocols in July 2020 before conducting an unannounced on-site inspection four days later. At the time, several employees were interviewed.

Hartman confirmed that he entered the MOC through its main entrance and was unaware that the basement police department entrance was more often used by employees – and originally the site where employees were screened for symptoms of COVID.

Freed said that at the time of the inspection, following recommendations from the United States Centers for Disease Control and Prevention, city workers were self-testing at home.

Later in the deposition, Hartman alleged that Freed was contradictory on this part of the protocol. This week, the city official refuted the claim and said he and union representatives in the room were trying to find out more about what Hartman had discovered.

“We were just asking questions and not getting answers. We have the right to ask questions about the evidence, ”Freed said.

Shoudy and Hartman also addressed the issue of Hartman’s elimination of emails and notes regarding the inspection and MIOSHA policy violations, city signage, the city’s COVID response plan and masking. employees.

“… Am I right in saying that during your whole tour and all your interviews, you never found a single employee who did not have a mask?” Shoudy asked.

Hartman said: “That’s right, everyone had a mask,” although he confirmed that an employee grabbed and retrieved a mask before leaving his office.

On the issue of city-provided masks versus allowing employees to use their own preferred face coverings, Harman said it was “the employer’s responsibility to protect employees.” However, he told Shoudy that it didn’t violate any standard that they had an option.

Contact Jackie Smith (810) 989-6270 or [email protected] Follow her on Twitter @ Jackie20Smith.

Kevin A. Perras