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Preparing for Additional COVID-19 Challenges

May 15, 2020
As they reopen, manufacturers must navigate a patchwork of regulations.

As the rate of new COVID-19 infections is beginning to flatten in parts of the country, President Donald Trump and governors are beginning to plan for relaxation of stay-at-home orders and the reopening of business operations. Manufacturers and other business facilities will likely resume operations gradually, often with additional mandatory or voluntary safety measures in place.

Because COVID-19 could surge again once communities begin to come out of physical isolation, companies should consider procedures for:

  • Monitoring employee health to determine who should stay home.
  • Determining which parts of the workforce can remain working from home initially.
  • Having clear visitor and vendor facility visitation and employee travel protocols.
  • Continuing extra sanitation and social distancing for those returning to work.
  • Training and communicating to employees about what is expected as they return to work.

The White House has published initial “Opening Up America Again” guidelines to help state and local officials plan for and implement reopening of businesses and public life. You can find our summary of that guidance here

The governors of Michigan, Indiana, Ohio, Wisconsin, Minnesota, Illinois, and Kentucky have announced they will coordinate reopening throughout their region. On the West Coast, California, Oregon, and Washington made a similar announcement. On the East Coast, New York, New Jersey, Connecticut, Pennsylvania, Delaware, Massachusetts, and Rhode Island intend to coordinate their reopening efforts.

Even before places reopen, most stay-at-home orders allow for certain essential businesses to remain in operation, although the details vary greatly. For businesses clearly defined as essential, most orders do not require obtaining any special authority to continue to operate. Those not clearly essential must look to federal guidelines and state and local orders to make a case for remaining open.

We have been tracking state and local orders for our manufacturing and distribution clients across the country, as well as providing tips for how they can navigate them. Here are some things to keep in mind as different areas go through different stages of opening and, potentially, closing again due to the coronavirus pandemic.

CISA Guidance

The federal Cybersecurity and Infrastructure Security Agency has twice updated its March 19 memorandum that many states and localities are using as a guide to define what counts as an “essential business. CISA includes “critical manufacturing” in its list of essential sectors, and it uses a broad definition that covers most manufacturing and distribution companies.

That said, companies should consider the memo a useful starting point but not a replacement for reviewing specific orders. CISA itself emphasizes that state and local governments are responsible for making their own decisions. Companies should also follow the memo’s recommendations for how to reduce exposure while remaining open, including “physically separating staff, staggering work shift hours or days, and other social distancing measures.”

Communicating with State and Local Officials

If manufacturers find themselves unsure whether they can continue to open, they should reach out to the appropriate state and local contacts with a concise statement that includes:   ,

  • A brief description of why it is essential for the business to remain open. Note whether you have more than one facility or more than one production line and document how each facility and each line is essential.
  • The industry and customers served. Definitely reference the CISA memo if applicable. If possible obtain supporting documentation from customers that documents their need for continued delivery of your product.
  • The procedures and protocols in place to protect those employees still at work—e.g., social distancing, shift staggers, sanitizing, monitoring employee health, sick leave policy, out of work social distancing policy for those still reporting to work, reducing workforce to smallest number possible, deferring non-essential tasks and work, limiting access to the building to only those employees who are supposed to be at work at that time, etc. Be sure to internally document these procedures and communications to employees. 

Avoid including privileged or confidential information—if you must, note that it is provided for the limited purpose of documenting that the operation is essential and that it should not be shared except as necessary for that singular purpose.

Even if you are in an area that has reopened, it is worth having this kind of statement ready in case COVID-19 cases rise and a new shutdown order comes out.

Additional considerations

If your company does not qualify as an essential business, it should still develop a plan for protecting its inventory, property, and continuation of essential services (payroll, accounting, supporting a now remote workforce) in a manner that would likely comply with a stay-at-home order. Based on a review of existing orders, such a plan should involve social distancing and only the most essential personnel working on-site. Keep a statement ready regarding such a plan, in case there is a need to respond to any enforcement action.

Plan to communicate early, often and clearly with employees using the channels you have found most effective during the pandemic. There is both a business case and a personal case for this approach. Manufacturers can ramp back up much more quickly if everyone is on the same page. In addition, some employees will naturally have fears about returning to work, and good communication between leadership and employees can help address those fears.

Additionally, adherence to CDC and OSHA guidelines are an important part of return-to-work strategies. OSHA has issued a safety alert specific to the manufacturing industry and its workers’ potential exposure to COVID-19, which includes tips related to social distancing and mask use. It would also be wise for manufacturers to review their insurance coverage, in case of an outbreak at the workplace. 

In fact, a workplace outbreak is a scenario companies should have a plan in place to handle. Public health leaders project that COVID-19 will present challenges until a vaccine is widely available, which could be more than a year away. Advance planning will put companies in a stronger position to respond quickly. 

Sam Moses and Claire Hall are attorneys on Parker Poe’s Manufacturing & Distribution Industry team.

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