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Michigan Manufacturers May Resume Production on May 11-But There's a Catch

Client Alert

Authors: Sean P. McNally, Todd C. Fracassi, Mitchell L. Guc, Nickolas M. Guttman and Joshua L. Zeman

5/12/2020
Michigan Manufacturers May Resume Production on May 11-But There's a Catch

On May 7, Michigan Gov. Gretchen Whitmer issued Executive Order 2020-77 (Order), extending the mandatory stay-at-home restrictions for all Michigan residents through May 28. However, unlike previous stay-at-home orders — see our articles on those orders here, here and here — this latest Order restarts an entire industry that is not only vital to Michigan, but also vital to the country at large — the manufacturing industry. The following article provides a review of the Order’s requirements for manufacturers to resume production beginning May 11.

Which manufacturing workers are allowed to return to work, and when are they allowed to return?

Paragraph 10 of the Order designates four new classes of “resumed activities,” each of which identifies specific workers and activities that are allowed to resume operations under the terms of the Order. Three of these new classes describe which manufacturing workers may return to work:1

(j) Workers necessary to perform start-up activities at manufacturing facilities, including activities necessary to prepare the facilities to follow the workplace safeguards described in section 11(k) of [the Order.]

(k) Effective at 12:01 am on May 11, 2020, workers necessary to perform manufacturing activities, subject to the workplace safeguards described in section 11(k) of [the Order.] Manufacturing work may not commence under this subsection until the facility at which the work will be performed has been prepared to follow the workplace safeguards described in section 11(k) of [the Order.]

(l) Consistent with section 9(b) of [the Order,] workers at suppliers, distribution centers, or service providers whose in-person presence is necessary to enable, support, or facilitate another business’s or operation’s resumed activities, including workers at suppliers, distribution centers, or service providers along the supply chain whose in-person presence is necessary enable, support, or facilitate the necessary work of another supplier, distribution center, or service provider in enabling, supporting, or facilitating another business’s or operation’s resumed activities. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.

Subsections (j) and (l) above are notable because they are effective right now — this means that workers performing facility start-up, “workplace safeguard” installation (more on that below), or those workers “at suppliers, distribution centers, or service providers” as described in subsection (l) may return to work immediately.2 On the other hand, workers who perform manufacturing activities under subsection (k) were not permitted to return to manufacturing activity work until 12:01 a.m. on May 11, and only then if workplace safeguards required by Paragraph 11(k) of the Order are in place.

Consistent with previous orders and other resumed activities, all workers returning to work under these sections must first receive designation from their employer to perform such work “in writing, whether by electronic message, public website, or other appropriate means.” Workers do not need to carry copies of their designations, but many are choosing to do so.

What are the requirements that manufacturers must meet to resume production?

Importantly, the Order continues to require that “[a]ll businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.” As most of us know, personal protective equipment (PPE) is in short supply across the globe. Michigan Attorney General Dana Nessel recognized the difficulty this may present for employers by issuing a press release asking law enforcement to consider good faith efforts of employers to acquire the required face coverings when enforcing the Order. However, manufacturers are subject to several additional requirements. They are as follows, per Paragraph 11 of the Order:

(a) Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.

(b) Restrict the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under [the Order.]

(c) Promote remote work to the fullest extent possible.

(d) Keep workers and patrons who are on premises at least six feet from one another to the maximum extent possible.

(e) Require masks to be worn when workers cannot consistently maintain six feet of separation from other individuals in the workplace, and consider face shields when workers cannot consistently maintain three feet of separation from other individuals in the workplace.

(f) Increase standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopt[] protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.

(g) Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.

(h) Adopt any other social distancing practices and mitigation measures recommended by the CDC.

. . .

(k) Manufacturing facilities must also:

(1) Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering the facility, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with temperature screening as soon as no-touch thermometers can be obtained.

(2) Create dedicated entry point(s) at every facility for daily screening . . . , and ensure physical barriers are in place to prevent anyone from bypassing the screening.

(3) Suspend all non-essential in-person visits, including tours.

(4) Train workers on, at a minimum:

A. Routes by which the virus causing COVID-19 is transmitted from person to person.

B. Distance that the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.

C. Symptoms of COVID-19.

D. Steps the worker must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.

E. Measures that the facility is taking to prevent worker exposure to the virus, as described in the COVID-19 preparedness and response plan required under section 11(a) of [the Order.]

F. Rules that the worker must follow in order to prevent exposure to and spread of the virus.

G. The use of personal protective equipment, including the proper steps for putting it on and taking it off.

(5) Reduce congestion in common spaces wherever practicable by, for example, closing salad bars and buffets within cafeterias and kitchens, requiring individuals to sit at least six feet from one another, placing markings on the floor to allow social distancing while standing in line, offering boxed food via delivery or pick-up points, and reducing cash payments.

(6) Implement rotational shift schedules where possible (e.g., increasing the number of shifts, alternating days or weeks) to reduce the number of workers in the facility at the same time.

(7) Stagger start times and meal times.

(8) Install temporary physical barriers, where practicable, between work stations and cafeteria tables.

(9) Create protocols for minimizing personal contact upon delivery of materials to the facility.

(10) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.

(11) Frequently and thoroughly clean and disinfect high-touch surfaces, paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).

(12) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers, and discontinue use of hand dryers.

(13) Notify plant leaders and potentially exposed individuals upon identification of a positive case of COVID-19 in the facility, as well as maintain a central log for symptomatic workers or workers who received a positive test for COVID-19.

(14) Send potentially exposed individuals home upon identification of a positive case of COVID-19 in the facility.

(15) Encourage workers to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.

(16) Shut areas of the manufacturing facility for cleaning and disinfection, as necessary, if a worker goes home because he or she is displaying symptoms of COVID-19.

As we can see, resuming production under the Order comes at a price. While sections (a) through (h) are generally applicable to all in-person work under the Order, section (k) is unique to manufacturers — the so-called manufacturing “workplace safeguards.” As stated above, no manufacturing activity can resume at any given facility until that facility “has been prepared to follow” these safeguards. However, workers categorized under paragraph 10(j) — facility start-up and workplace safeguard installation workers — appear to be authorized to work once their facility complies with the Paragraph 11(a) through (h) requirements, as well as employee designation requirements.

Recommendations for Manufacturers

Given that most of the Order that is applicable to manufacturers is already in effect, manufacturers must promptly revise their policies and procedures to comply with the Order if they have not already done so. To that end, and in cooperation with and including the requirements discussed above, we recommend that manufacturers:

  • promptly designate workers pursuant to anticipated in-person work needs.

  • prioritize compliance with the Paragraph 11(a) through (h) requirements to allow those workers that do not appear to be subject to the workplace safeguards under Paragraph 11(k) — facility start-up and workplace safeguard installation workers — to return to your facilities as soon as possible to perform their tasks. This will include continuing to prepare, review and revise your COVID-19 preparedness and response plan as appropriate; see this article for guidance on preparation of a plan.

  • as soon as compliance with 11(a) through (h) is achieved, promptly prioritize facility start-up and workplace safeguard installation.

  • to the greatest extent possible, acquire nonmedical-grade face coverings for distribution to employees and document each attempt to acquire face coverings to meet the good faith standard articulated by the attorney general.

  • as soon as practicable, but no later than the return of manufacturing activity workers to a facility, develop training programs and protocols required by the workplace safeguards set forth in Paragraph 11(k) of the Order.

  • document employee training and require employees to sign an acknowledgement that they understand the workplace safeguards.

  • continuously monitor the state’s coronavirus website for additional guidance.

  • keep in mind that a willful violation of the Order is a misdemeanor.

  • develop a symptom-screening questionnaire as a part of your facility entrance protocol under Paragraph 11(k) that screens for COVID-19 symptoms and confirmed or suspected exposure to individuals with possible COVID-19.

Looking to the future, Gov. Whitmer also announced that the state has moved into “Phase 3” of the latest MI Safe Start Plan, also known as the “Flattening” phase of the pandemic. This is undeniably positive news that played a large part in prompting the reopening of the manufacturing industry. The further easing of restrictions announced here implies a trajectory toward more easing of restrictions in the future, which could provide a much-needed economic boost to the industry in the coming weeks and months.

The attorneys at Pepper Hamilton are actively working to assist companies in evaluating the complex issues presented by the Order. For more information on the Order’s applicability to your business, please contact the authors.

Endnotes

1 Note that one manufacturing “resumed activity” has been authorized since May 7 under both the previous order and the new Order: “Workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections[,]” as seen at Paragraph 10(h).

2 Note that businesses under section (l) are not only limited to the support of a resumed manufacturing activity; they may support any resumed activity listed under Paragraph 10 of the Order. Please see Paragraph 10 of the Order here for the comprehensive list.

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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