Foster Swift Legal Update E-blast
May 8, 2020
On May 7, 2020, Governor Whitmer released Executive Order 2020-77 (“EO 2020-77”), which updates and extends the “stay-at-home” order that has been in place since March 24, 2020. The “stay-at-home” order will remain in place through May 28, 2020, but EO 2020-77 provides for manufacturing facilities to restart on May 11, subject to strict workplace safeguards.
Manufacturing is the latest sector to reopen, following construction and real estate which restarted on May 7. Additionally, non-manufacturing suppliers, distribution centers, and service centers necessary to support resumed activities may reopen immediately, subject to social distancing measures.
Workplace Safeguards for Manufacturing
Effective May 11, workers necessary to perform manufacturing activities may resume in-person operations subject to certain workplace safeguards. Workers necessary to perform start-up activities, including preparing and installing workplace safeguards, may begin work immediately.
Any manufacturing facility's reopening must:
- Conduct a daily entry screening for all individuals entering the facility. This includes a questionnaire for symptoms and exposure to persons suspected or confirmed to have COVID-19 and a temperature screening as soon as no-touch thermometers can be obtained. Manufacturers should document and retain workers' responses.
- Create a dedicated entry point for the daily screening and use physical barriers to prevent someone from bypassing the screening.
- Suspend all non-essential in-person visits, including tours.
- Train workers on:
- How COVID-19 can be transmitted between persons;
- Distance the virus can travel in the air and how long the virus can remain viable in the air and on surfaces;
- Symptoms of COVID-19;
- Steps to take if the worker has symptoms or a suspected or confirmed COVID-19 diagnosis;
- Measures being taken to prevent worker exposure, as described in the business’s COVID-19 preparedness and response plan;
- Rules workers must follow to prevent exposure;
- The proper use of personal protective equipment (PPE).
- Reduce congestion in common spaces where practicable, including requiring workers to be at least six feet apart.
- Implement rotational shift schedules where possible to reduce the number of workers in the facility at any one time. This may include increasing the number of shifts and alternating days or weeks.
- Stagger start and meal times.
- Install temporary physical barriers between work stations and cafeteria tables, where practicable.
- Create protocols for minimizing personal contact during deliveries.
- Adopt protocols to limit the sharing of tools and equipment when possible.
- Frequently and thoroughly clean and disinfect high-touch surfaces, including parts, products, and shared equipment.
- Ensure there are sufficient handwashing or hand-sanitizing stations that workers can access. Discontinue the use of hand dryers.
- Notify plant leaders and potentially exposed persons if there is a positive case of COVID-19 identified in the facility. Keep a log of symptomatic workers or workers who tested positive for the virus.
- Send potentially exposed persons home after a positive case of COVID-19 in the facility.
- Encourage workers to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.
- Shut down areas for cleaning and disinfection as necessary, especially if a worker goes home because he or she is displaying symptoms of COVID-19.
Additional guidance from the Michigan Department of Labor & Economic opportunity can be found here.
Safeguards for All Businesses Operating In-Person
Any business that is open for in-person work must:
- Develop a COVID-19 preparedness or response plan;
- Restrict the number of workers present to no more than is strictly necessary to perform the permitted work;
- Promote remote work to the extent possible;
- Keep individuals at least six feet apart to the maximum extent possible;
- Require masks to be worn when workers cannot maintain six feet of separation and consider face shields if workers cannot consistently maintain three feet of separation;
- Increase cleaning and disinfection standards and adopt protocols to clean and disinfect in case of a positive COVID-19 worker;
- Adopt policies to prevent exposed or symptomatic workers from entering the workplace; and
- Adopt other social distancing measures and mitigation measures recommended by the Centers for Disease Control.
Returning to Work and the Paycheck Protection Program Loan
Some businesses are finding that not all employees are willing to return to work once the business resumes activities. This can be problematic for businesses that have received loans under the Paycheck Protection Program (PPP) and are worried a worker’s refusal to return to work will reduce the amount that can be forgiven. However, the Small Business Administration has recently announced a borrower’s loan forgiveness amount will not be reduced if the borrower laid off an employee, but made a good faith, written offer to rehire, and the employee rejected the offer. If this is the case, the business should document the written offer to rehire and document the employee’s rejection of the offer. These documents should be preserved and may need to be produced when applying for the loan forgiveness.
If you need any assistance developing internal policies or a COVID-19 Preparedness and Response Plan, have any questions regarding the Paycheck Protection Program or about employees returning to work, please contact your Foster Swift attorney or a member of Foster Swift’s Coronavirus Task Force:
- Mid-Michigan - John Mashni | 517.371.8257 | firstname.lastname@example.org
- Southeast Michigan - Matthew Fedor | 248.785.4734 | email@example.com
- West & Northern Michigan - Laura Genovich | 616.726.2238 | firstname.lastname@example.org
While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking action.