Workplace Regulators Abuse Power Extending State Emergency Rules Until Christmas Week

The Michigan Occupational Safety and Health Administration recently announced it has rescinded COVID-19 pandemic emergency rules imposed in October and replaced them with a new set of emergency rules.

But it’s unclear whether this action is lawful, according to Michael Van Beek, director of research for the Mackinac Center for Public Policy.

Repealing, replacing, or modifying emergency rules with a simple announcement is not a power granted to state departments under a law called the Administrative Procedures Act of 1969, Van Beek says. This is the law that empowers administrative agencies to write, administer and enforce rules that are supposed the carry out the directives of laws enacted by the Legislature.

For this reason, the procedures the APA requires for imposing those rules are very precise and specific. And in this instance, Van Beek believes, those procedures are not being followed.

The APA states:

“If the agency desires to promulgate an identical or similar rule with an effectiveness beyond the final effective date of an emergency rule, the agency shall comply with the procedures prescribed by this act for the processing of a rule that is not an emergency rule.”

Several state government departments were authorized by law in October 2020 to impose six-month emergency pandemic response rules on businesses, and extend them up to six months more. But the APA does not authorize the governor or any department to rescind or modify such rules once they are in place.

But modify these rules is what the Michigan Occupational Safety and Health Administration did on May 24. MIOSHA then replaced the modified rules with another set on June 22.

“The updated MIOSHA emergency rules ... focus on health care settings where known or suspected COVID-19 patients may be present,” according to an article posted online by the workplace regulatory agency. The new rules will not expire until Dec. 22, 2021.

Van Beek says because the new rules are so similar to the previous ones, and extend them far longer, the APA requires officials to undertake a new round of the promulgation process, which has very specific steps for ordinary, nonemergency rules.