A recent article proclaimed a truth manufacturers in all industry sectors know all too well: You can’t build an airplane working from home.
As law offices, financial services firms and tech companies close their doors and require employees to work from home, manufacturers face the reality that manufacturing requires employees to work onsite. There is no factory production work from home. Intermittent FMLA and workers compensation absences are hard enough to manage in the ordinary course of business. But the challenge to staff a factory becomes much more daunting every day during this pandemic, with an emphasis on “self-quarantining,” social distancing, and avoiding groups of more than 10 people.
Ogletree Deakins’ Manufacturing Industry Group recently conducted a Manufacturers’ Roundtable Discussion involving scores of manufacturers from numerous industry sectors to share ideas about how manufacturers can continue to operate in the face of this pandemic. This article compiles some of the ideas and practices identified in that roundtable discussion, and they can be organized into three primary categories.
1. IDENTIFY AND EXCLUDE HIGH-RISK PEOPLE
Manufacturers have to move aggressively to identify and exclude from the workplace those employees that have symptoms of the COVID-19 virus (i.e., fever, cough, runny nose, sore throat, difficulty breathing). Where feasible, it could be better to go one step further and identify and exclude employees at high risk from the factory. Examples include those who have taken a cruise or international flight in the last few weeks, or who live with someone presenting symptoms of COVID-19 infection.
Ways to identify the symptomatic or other high-risk persons include:
Some employers do temperature screening of employees upon entering work (to exclude persons with a temperature above 100.4 degrees).
This is easier said than done, as the implementation is often tricky. That's because privacy of the tested employees should be protected, and the screener needs to be trained and protected. For more information on temperature screenings, see Ogletree Deakins' article entitled “The Latest COVID-19 Conundrum: Can Employers Institute Temperature Checks at Workplaces?”
Time spent in this mandatory screening process may commence the compensable work day, depending on your state wage law and the circumstances.
Asking for self-identification through frequent surveys or interviews.
Again, this is a task that's easier said than done. Many hourly employees live paycheck to paycheck. They will be very reluctant to admit having a member of their household who demonstrates symptoms, as to do so means getting laid off. Thus, employers need to reduce the barriers to full disclosure. Somehow the employer has to alleviate the painful economic consequences of self-disclosures if it expects full candor from its hourly employees. Examples include:
- Flex attendance policies to allow time off without penalty.
- Flex PTO or vacation policies to waive notice or full week requirements to allow the employee to use up paid leave entitlements.
- Perhaps allow employees to borrow from future leave entitlements (and maybe forgive those “debts” later?).
- Consider increasing paid leave benefits.
If you have less than 500 employees, you may be covered by the new Emergency FMLA and Paid Sick Leave Requirements of the new Families First Coronavirus Response Act.
Spot sick employees and send them home.
Train line managers, supervisors, and leads to be aware of when employees are looking sick and/or exhibiting symptoms of COVID-19. Consistent with CDC guidelines, they should report the concern to an appropriate point of contact (HR, plant manager, safety manager or other), who should immediately isolate the sick employee from others and send him or her home. The employee should be advised to seek medical attention if he or she continues feeling ill.
Keep the sick employee out of work until he or she experiences least 24 hours symptom-free under the CDC guidance, or if he or she gets tested and are positive for COVID-19, that’s likely going to be longer and you would keep the employee out until such time as he or she is appropriately cleared to return.
Consider communicating a “see something, say something” mindset so that employees are trained and empowered to inform an appropriate point of contact if any other person in the factory is exhibiting COVID-19 symptoms.
2. CONSIDER IF YOU ARE A “CRITICAL INFRASTRUCTURE” BUSINESS
On April 8, 2020, the U.S. Centers for Disease Control and Prevention (CDC) issued its new Interim Guidance for Implementing Safety Practices for Critical Infrastructure Workers Who May Have Had Exposure to a Person with Suspected or Confirmed COVID-19. The guidance provides that critical infrastructure workers may be allowed to continue working following a potential exposure to COVID-19 in order to ensure the continuity of essential operations under certain circumstances. There are a few key points employers need to know about this new guidance.
The guidance specifically applies to critical infrastructure workers, including workers and contractors in the food and agriculture, critical manufacturing, informational technology, transportation, energy, and government facilities industries. Further information on identifying critical infrastructure workers can be found on the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (CISA) website and on the CDC’s first responder guidance website.
For purposes of the guidance, a potential exposure means “being a household contact or having close contact within 6 feet of an individual with confirmed or suspected COVID-19.” The CDC notes that the relevant timeframe for determining a potential exposure is 48 hours prior to the infected individual with whom the employee had contact showing symptoms of COVID-19.
The guidance permits the continued work of an asymptomatic critical infrastructure worker who has been exposed to COVID-19, but only while that person remains without symptoms and while additional precautions are being taken. If the worker develops symptoms (gets sick), the worker should be sent home immediately, the workspace should be cleaned and disinfected, and the worker should seek appropriate medical care as necessary. In addition, the CDC advises employers to identify other people who came in contact with the exposed worker up to 48 hours prior to the exposed worker developing symptoms. For more information on handling exposed or symptomatic employees, see Ogletree Deakins’ list of frequently asked questions (FAQs), “COVID-19: FAQs on Federal Labor and Employment Laws” posted on our Coronavirus (COVID-19) Resource Center.
The guidance provides that where asymptomatic exposed workers continue to work, they should be required to adhere to the following additional precautions prior to and during each work shift:
- Pre-Screening -- The CDC advises employers to measure the employee’s temperature and assess whether he or she has any symptoms prior to the employee beginning work. The CDC recommends that temperature checks occur before the employee enters the facility.
- Regular Monitoring -- The employee should self-monitor for COVID-19 symptoms “under the supervision of [the] employer’s occupational health program.” For more information on how to handle employees who become symptomatic while at work, see our article, “COVID-19: FAQs on Federal Labor and Employment Laws.”
- Wear a Mask -- The guidance states that the exposed employee should wear a face mask, which may be issued by an employer, or an employee’s cloth face coveringif masks are not available, at all times while the exposed employee is in the workplace, for a period of 14 days after the last exposure.
- Social Distancing -- The exposed employee should practice social distancing as much as possible, including staying at least six feet way from others in the workplace. The CDC also recommends that employees maintain distancing while taking breaks together, or stagger breaks to avoid congregations in break areas.
- Disinfect and Clean Work Spaces -- The employer should regularly clean and disinfect all areas, including offices, bathrooms, common areas, and shared electronic equipment. The CDC also recommends employers increase the frequency of cleaning commonly touched surfaces, ensure that employees refrain from sharing headsets or other items that are near employees’ mouths or noses, and work with facility maintenance personnel to increase air exchanges in the facilities.
3. KEEP EMPLOYEES SAFE AT WORK (AND CONFIDENT IN THEIR SAFETY)
Employers may consider the steps listed below to maintain a safe work environment. In a unionized factory, the CBA will need to be considered and the union consulted when the employer makes changes to terms and conditions. But in this time of an unprecedented pandemic, crisis should compel union cooperation, or at least allow employers to creatively interpret and apply some of general “purpose of the agreement” type of language usually found near the front of CBAs that is sometimes overlooked. This is especially true where changes need to be implemented to maximize employee health, and better ensure continuity of operations (and jobs and wages). Sometimes those temporary changes simply must be made, even if after consultation with the union the union attempts to obstruct. “Work now, grieve later” is a cardinal principle that may need to be relied on to get through this crisis with employee health and the business preserved.
Here are some key safety ideas:
- Prohibit all non-essential visitors to the factory; rigorously screen essential visitors and limit their movement in the facility.
- Train employees on self-responsibility behaviors (repeatedly refresh the training):
- Respiratory etiquette
- Hand washing
- Using hand sanitizers
- No physical contact
- No sharing of utensils, cups, beverages, etc.
- Social distancing -- maintain at least 6 ft. between employees, post reminders of these behaviors everywhere, and make changes to implement structure.
- Educate employees to keep minimum distances and prohibit physical contact.
- Cease using large group meetings.
- Replicate meetings multiple times to have smaller groups attend, and physically space people out in the meeting room.
- Eliminate routine shift hand-off meetings that are not critical, or limit these to just particular people as critically needed. Also, rely more heavily on log entries to communicate shift to shift.
- Stagger shift start/stop times, break times and lunch times to minimize congregations at the time clocks and in the locker rooms and break areas. Maybe create a new shift (nights, or weekends) to help separate your workforce and to give employees scheduling options that may help them manage new family obligations with kids home from school.
- Zone the factory and prohibit employees from wandering into zones where they do not need to be to perform their jobs. Stagger crews so that an outbreak can perhaps be isolated so that, after cleaning, the factory can run with unaffected crews.
- Identify the key personnel without whom the factory cannot operate (e.g., boiler operators, wastewater treatment engineers, lead electricians or maintenance mechanics, etc.).
- Create schedules, procedures and any other steps to isolate them from each other and the rest of the workforce to try to minimize their exposures.
- Beef up cross training, if that can be done with acceptable distancing, to prepare for more absences.
- Increase frequency and depth of sanitizing efforts, and let employees see it happen to reinforce the sanitizing behaviors and engender confidence in the safety of the workplace.
- Have break rooms cleaned repeatedly all day; perhaps after each lunch group.
- Provide sanitary wipes throughout the facility and train employees on using them constantly to clean high-touch surfaces.
Many of these steps may be obvious to some, but hopefully this compilation of ideas in one place is useful to manufacturers and will prompt even more creative thinking about how to keep factory employees safe, healthy and productive.
This article was written by Bernard J. Bobber of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and contributed to the Association of Equipment Manufacturers (AEM).
AEM is offering support to the equipment manufacturing industry during this time which can be found on the COVID-19 section of the AEM website.