Update Applicable to:
All employers in the state of Michigan.

What happened?
On October 17, 2022, the Michigan Occupational Safety and Health Administration (MIOSHA) issued an agency instruction titled “Interviews in Health and Safety Investigations,” which provides clarification of procedures for conducting interviews during an enforcement investigation

What are the details?
The stated purpose of that agency instruction is to provide “clarification on proper procedures when conducting interviews for enforcement investigations under Section 29(1) of the Michigan Occupational Safety and Health Act.” The instruction applies to MIOSHA inspections related to the Construction Safety and Health Division and the General Industry Safety and Health Division. The instruction will remain effective, barring any change in the interim, until October 17, 2027.

Section 29(1) of the Michigan Occupational Safety and Health Act (MIOSH Act) permits MIOSHA representatives to “question privately the employer, owner, operator, agent, or an employee concerning safety or health” in the course of an inspection or investigation. Historically, MIOSHA inspectors permitted the presence of another person in the employee interview at the employee’s request. The permitted persons included union representatives, management representatives, or both. Generally, there was no issue with employers, managers, and other “company” representatives being represented by counsel during those interviews.

In 1990, an employer challenged this practice in Bureau of Safety and Regulation, General Industry Safety and Health Division v. Detroit Diesel Allison Parts Distribution Center, Docket No. NOA 843544 (December 14, 1990). In that case, “the employer challenged whether MIOSHA could privately question employees during an inspection with a union representative present [while] excluding the employer representative.” The administrative law judge (ALJ) ruled that the MIOSH Act’s use of the word “private” limited the interview to a private interview with the MIOSHA inspector and the employee. The ALJ also noted that MIOSHA, the employee, and the employer could agree to have other people present if they desired. Still, MIOSHA could not permit union representatives to be present while excluding employer representatives.

The agency instruction includes limitations on who may participate in MIOSHA interviews of employees, employers, agents, owners, operators, or agents. However, the instruction states that “any of the following individuals may be present”:

• MIOSHA personnel who are present for training or observational purposes;
• MIOSHA-retained individuals present for purposes of transcribing or recording the interview;
• MIOSHA-retained translators or interpreters; and
• MIOSHA-retained personnel hired for purposes of assisting in interviews of persons with disabilities.

In other words, under this agency instruction, only MIOSHA personnel or persons retained by MIOSHA are permitted to be present for MIOSHA interviews.

Employers may want to remember that MIOSHA is empowered to issue civil and criminal penalties. Specifically, Section 35(5) of the MIOSH Act states the following:

An employer who willfully violates this act, an order issued under this act, or a rule or standard promulgated under this act that causes the death of an employee is guilty of a felony. It shall be fined not more than $10,000.00, imprisoned for not more than one year, or both. If the conviction is the second under this act, the person shall be fined not more than $20,000.00, imprisoned for not more than three years, or both.

Thus, under this agency instruction, MIOSHA personnel may conduct interviews that could be used in a felony criminal prosecution while denying interview subjects access to counsel. Moreover, the agency instruction does not refer to any limitations on the interviews based on the Fifth Amendment or Fourteenth Amendment to the United States Constitution or a requirement that any notification of due process rights is given to interviewees.

For more information, please see the links below:

Michigan Occupational Safety and Health Administration (MIOSHA)

Agency Instructions

Article

What do employers need to do?
Employers should review the links provided above and may want to review their procedures when conducting interviews for enforcement investigations so that they comply with the law.

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