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Manufacturing: Back to Business (Part Two)

This is the second of two posts dedicated to reopening plans for manufacturers.  In the first post on May 26, I addressed the first two questions which every manufacturer may wish to ask as it forms its reopening plans.  Manufacturing;  Back to Business (Part One) (May 26, 2020).  Here, I address the next four questions.

Which Groups of Workers Will be Brought Back to Work?

A particularly complex question, determining which workers will be brought back may present one of the biggest challenges.  How the decision will be communicated to workers?  Many employees may have moved physical locations for personal, safety or family reasons.  Some workers may need advance notice to relocate, resign from other temporary or volunteer positions taken while on leave or otherwise prepare for the return to work safely.

Next, the question focuses on “who” and “how many.”  Many states limit the number of employees or customers which can be on site at any one time.  Additionally, some manufacturers may wish to “stagger” work by departments, floors or areas so that if one becomes infected, the others can continue to operate.  Keep in mind that the basic pre-COVID-19 labor and employment considerations continue to apply – employment decisions should be based on legitimate, non-discriminatory and objective reasons.

Also consider employees are not “homogenous.”  Everyone must deal with her or his own personal challenges.  Some may have underlying medical conditions or be of certain age making them or a close family member more susceptible to serious risk if infected with COVID-19.  While EEO laws do not permit employers to make decisions based on an employee’s vulnerability, the employee may elect to delay a return to work because of these issues.  Manufacturers may wish to consider how it will address these issues before they arise.

Manufacturers may also need to update wage notices or other policies to address new wage rates, work schedules or other training or leave obligations and entitlements.

What Safety Precautions Should Manufacturers Take to Make Sure Returning Workers are COVID-19 Free?

As workers return to work, manufacturers may need to ensure those workers are COVID-19 free.  Among other steps, business may wish to require employees complete a questionnaire identifying symptoms or behaviors likely to reveal infection.  Other steps, like requiring employees to take their own temperatures before coming to work, may likewise be desired.  Some manufacturers may be considering COVID-19 antibody or other tests.  The reliability of such tests could be debatable, so the wisdom of such an approach requires consideration.  Manufacturers must remember that responses to questionnaires, temperature or other test results likely amount to “medical records” which must be keep in restricted “need to know” access files.

What Workplace Precautions Should Manufacturers Take to Make Sure Employees and Customers Stay COVID-19 Free?

Every day scientists are learning more about the COVID-19 disease and the most effective ways to prevent its spread.  The precise steps required by manufacturers to protect employees and customers likely will be outdated quickly.  Manufacturers may wish to monitor safety guidelines issued by OSHA, the CDC and state authorities.  Manufacturers also may wish to review general liability and other policies, many of which will exclude damages caused by a pandemic.

How Should Manufacturers Plan for the COVID-19 Resurgence?

Even while manufacturers reopen or expand beyond essential operations, leaders may wish to do so with an eye on the Fall of 2020 and Winter of 2021 when many expect the COVID-19 pandemic to return.  So-called “critical” or “essential” workers already challenged by “round one” may be particularly stressed.  Manufacturers may wish to consider how to prepare for that resurgence by providing more flexibility for those with critical skills during the summer months.  Additional leaves or other employee recognition programs could help combat “battle fatigue” and prepare for the “next wave.”

By asking and answering these six critical questions, manufacturers can create a strong foundation supporting their business in the months ahead.

Copyright © 2020 Robinson & Cole LLP. All rights reserved.National Law Review, Volume X, Number 154

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About this Author

Matthew Miklave Labor Employment Lawyer
Partner

Matthew Miklave has more than three decades of experience as a labor, employment, and civil rights attorney, and has served as a litigator, counselor, and contract negotiator throughout his career. He is a member of the firm’s Labor, Employment, Benefits + Immigration Group.

Labor, Employment, and Civil Rights

For more than 30 years, Matt has represented employers and management in all areas of employment, civil rights, and traditional labor law, including issues arising under federal and state anti-discrimination and anti-retaliation statutes; non-compete...

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