On May 7, Governor Whitmer issued Executive Order 2020-77 reopening manufacturing effective May 11. This order continues the “process of gradually resuming in-person work and activities that were temporarily suspended under … prior orders.” This latest order supersedes prior stay-at-home orders, and extends until May 28 prior restrictions and stay-at-home provisions already in effect.

Reopening Manufacturing

EO 77 permits workers “necessary to perform start-up activities at manufacturing facilities” to engage in those activities immediately. The manufacturing employer may permissibly recall all “workers necessary to perform manufacturing activities.” EO 77, section 10(k). Further, “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” are permitted to be recalled to work, subject to specific provisions identified at section 9(c) of the order.

Manufacturing facilities to be reopened must comply with the threshold social distancing and safe-work requirements of section 11 which are applicable to all businesses requiring “in-person work.” Those rules, which have been in effect in various forms since the initial stay-at-home order, include among other things:

• preparation of a COVID-19 preparedness and response plan,
• restriction of the number of workers to those “strictly necessary to perform the in-person work,”
• six-foot distancing “to the maximum extent possible,”
• the mandatory use of masks when such distancing is not be “consistently maintain[ed]”
• face shields are to be “considered” where workers must work within three feet of each other,
• increased cleaning and disinfection, and
• screening policies “to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person” with a positive COVID diagnosis.

Again, there are additional “in-person” work requirements applicable to all businesses.

Additional Manufacturing-Specific Requirements

Further, “(m)anufacturing work may not commence … until the facility at which the work will be performed has been prepared to follow” strict workplace standards and protocols set forth at section 11(k) of the Order. In addition to the prior procedures, reopening manufacturing facilities must:

“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 as provided in subprovision (1) of this subsection, 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 this 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 the Governor’s Executive Orders continue to issue we anticipate that further sectors of the economy will be addressed. Please contact your Fraser Law Firm lawyer for timely assistance.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.

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We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.

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Fraser Trebilcock Shareholder Dave Houston has over 40 years of experience representing employers in planning, counseling, and litigating virtually all employment claims and disputes including labor relations (NLRB and MERC), wage and overtime, and employment discrimination, and negotiation of union contracts. He has authored numerous publications regarding employment issues. You can reach him at 517.377.0855 or dhouston@fraserlawfirm.com.