OSHA has been criticized for failing to promulgate a new standard for COVID-19.  The AFL-CIO sued OSHA in U.S. federal court, requesting a court to order OSHA to publish an emergency temporary standard covering COVID-19. Last week the D.C. Court of Appeals dismissed the lawsuit and the AFL-CIO has appealed.

Meanwhile in Minnesota, the State has taken the matter into its own hands and published guidance describing what safety, sanitizing and health protocols must be adopted by employers.  Until June 29, businesses deemed by Governor Walz as Critical Sector businesses have been operating without specific mandates, other than the requirement that they comply with CDC, Minnesota Department of Health, and Minnesota Department of Labor and Industry (DOLI) guidance.  Now, effective June 29, DOLI will require that certain Critical Sector businesses comply with specific standards.  Among the affected industries are construction, manufacturing, convenience stores and agriculture.

The guidance applies to businesses “engaged in the production of materials, food or wares whether by manual labor or machinery.”  Manufacturing includes but is not limited to “food production, computer and electronics, fabricated metal, machinery and medical devices.”

What Does the Guidance Say?

These new requirements, styled as “guidance,” are mandatory.  The guidance expressly states that manufacturing businesses must address all the guidance requirements applicable to their workplaces in their COVID-19 Preparedness Plans.nManufacturers must ensure their plan is evaluated, monitored, executed and updated under the supervision of a designated plan administrator.  Businesses must post the plan at all the business’s workplaces in readily accessible locations so that the plan can be easily reviewed by all workers.

A plan must apply to all workers performing work at the workplace or for the business, including subcontractors, independent contractors, associates, team members, vendors, delivery personnel, contract, temporary, part-time and seasonal workers.  All workers must be trained and required to adhere to the employer’s policies, protocols, and practices as described in the guidance.

The guidance described protocols with which most manufacturing companies already comply.  Social distancing, ensuring that sick workers stay home, worker hygiene, workplace building and ventilation protocols, and workplace cleaning and disinfection protocols, are described in detail in the guidance.

Immediate Actions

We recommend that manufacturers immediately review the guidance and determine whether they need to adopt new requirements which are not currently in place.  In addition, manufacturing businesses should:

  • Consider the establishment of a team comprised of employees and management to discuss the guidance and how the business can comply with the guidance. Employees may have views and input regarding compliance, and/or that will reduce the disruption which may result from the guidance.
  • Designate a Plan Administrator to monitor and supervise the implementation of the employer’s plan
  • Institute flexible workplace and leave policies – evaluate and adjust sick leave policies to reflect the need for isolation and quarantine and to create incentives for workers who are sick to stay home.
  • Establish a process to identify contact between infected workers and other workers who may have been exposed.
  • Designate an individual to maintain communication with and gather information from workers who may be ill, to ensure the privacy of workers is maintained.
  • If not already in place, create contactless deliveries
  • Cross-train employees to perform essential functions so the workplace can operate even if key employees are absent
  • In addition to training employees about the elements of the plan, ensure that the necessary or required protocol and practices are communicated to temporary, seasonal and contract workers, and ensure protocols and practices are required by businesses providing temporary, part-time, seasonal and contract workers.
  • If a labor union represents any of the employer’s employees, review the collective bargaining agreement and determine if the employer is required to negotiate or communicate with the union concerning the protocols and practices contained in the plan.
  • Discipline employees who fail to comply with directives and instructions contained in the plan or any other employer-mandated rules.
  • If an employer needs assistance in preparing a plan, Minnesota OSHA has a consulting division that is available for consultation consultation@state.mn.us.

If your business needs any assistance in drafting and preparing a preparedness plan, please contact one of Larkin Hoffman’s labor and employment attorneys.