On May 1, 2020, Governor Sununu issued Emergency Order #40 to facilitate and guide the reopening of the State in phases.  Referred to as Stay At Home 2.0, Emergency Order #40 sets forth mandatory requirements for those businesses that were considered essential and their facilities have remained open and those that are scheduled to reopen all or a portion of their operations in the coming weeks.

Many manufacturing companies were deemed providers of Essential Services and have remained open since the Governor first issued a stay at home emergency order. These companies have had in place COVID-19 related protocols, procedures, and policies for employees to follow in the workplace for well over a month. Emergency Order #40 makes clear that these companies need to review their current practices and determine if they comply with the newly issued Universal Business Guidelines, effective immediately. Those manufacturing companies that may be reopening portions of their business operations will need to comply with the Universal Business Guidelines  at the time of reopening.  My colleague has written about the Universal Business Guidelines here, including some guidance on the screening of employees reporting for work.

Manufacturers currently operating or reopening must also comply with the state-issued industry specific guidelines. This specific guidance comes as the media reports outbreaks in manufacturing plants in other states.  Stay at Home 2.0 Manufacturing COVID-19 Reopening Guidance sets forth 15 employee protection recommendations that companies must follow for the protection of employees and consumers.

  1. Review and follow the Universal Business Guidelines for New Hampshire companies.
  2. Review and follow U.S. Centers for Disease Control and Prevention (CDC) guidance.
  3. Review and follow Occupational Safety and Health Administration (OSHA) guidance.
  4. While Personal Protective Equipment (PPE) is likely minimal in the manufacturing workplace, employers should assess areas of risk and determine any appropriate PPE under CDC guidance.
  5. Employees should wear cloth face coverings over nose and mouth when social distancing (at least 6 feet) may be difficult.
  6. Encourage frequent hand hygiene and provide alcohol-based hand sanitizer and hand washing stations.
  7. Adjust processes to maintain social distancing (6 feet between employees).
  8. Stagger shifts, breaks, meals to maintain social distancing (6 feet between employees).
  9. Provide regular updates, education, and training for employees about protections from COVID-19.
  10. Require reporting of any employee illness and COVID-19 positive cases in employee’s household to supervisor.
  11. Implement flexible sick leave policies to allow employees to stay at home when sick or to care for a sick family member.
  12. Prohibit congregating in break rooms or common areas to allow safe social distancing (6 feet at all times).
  13. Restrict interaction between employees and outside visitors, including implementing touchless receiving practices if possible.
  14. Erect impermeable barriers to limit contact with others, whenever possible.
  15. Require sanitization of equipment and/or workspace areas at beginning, middle and end of shifts, particularly in “high touch” areas, as feasible.

As listed above, the Manufacturing Guidance requires strict adherence to CDC and OSHA guidance. Businesses must also comply with guidance from the Equal Employment Opportunity Commission (EEOC) and the US Food and Drug Administration (FDA). Employers should also follow all wage and hour laws and regulations and other employment laws that relate to the workplace.

As noted in the Governor’s press release, this “universal guidance will serve as the bare minimum standards which businesses must meet to maintain or begin operations” and the manufacturing industry will require “specific operational procedures” be put into place based on industry specific guidance as various sectors of the State get back to work.   Companies may require additional procedures and practices that are consistent with the above and the Division of Public Health.   Employers should review their policies, practices and procedures and make any adjustments or updates as needed to incorporate these mandatory recommendations for the manufacturing industry.

The USDOL on April 29, 2020 announced that a Southern California Tire Company will be required to pay an employee $2,606 in back wages for failing to provide sick leave to an employee under the Emergency Paid Sick Leave Act (EPSLA) provisions of the Families First Coronavirus Response Act (FFCRA). The employee presented documentation to his employer from a health care provider advising that he self-quarantine while waiting for a family member’s test results for coronavirus.  The employer mistakenly believed that the individual was required to produce evidence of a positive test to qualify for the leave.

Continue Reading USDOL Begins Enforcement of Employee FFCRA Rights

The Massachusetts-based Pioneer Institute – a well-respected public policy research body – has issued a “Checklist for Employers” preparing to re-open their facilities. The comprehensive checklist states that:

“While it is impossible to fully eliminate all risks associated with reopening in the COVID-19 setting, an employer may be able to significantly mitigate and reduce risks, such as workplace hazards and employment issues, by following some or all of the recommendations” set forth in the Checklist.

Continue Reading Checklist for Employers Wanting to Re-Open Their Businesses in the Coming Weeks

On Friday, May 1, Governor Baker issued COVID-19 Executive Order No. 31 requiring face coverings in public places where social distancing is not possible.  The Order provides that effective Wednesday, May 6, 2020, any person over 2 years of age, within a public place and who cannot maintain social distancing – defined as maintaining a distance of 6 feet from others – “shall cover their mouth and nose with a mask or cloth face covering[.]” The new mandate “applies to all workers and customers of businesses and other organizations open to the public as ‘essential businesses.’”

Continue Reading Massachusetts Now Requires Cloth Face Coverings

The U.S. Department of Labor (DOL) has launched a national online dialogue to obtain feedback on “Opening America’s Workplaces Again.” Businesses and workers are invited to participate in this new public forum and to provide comments through May 7, 2020. Specifically, the DOL seeks ideas and recommendations on what challenges employers and workers may face with a return to work and what companies and employees can best do to reopen workplaces safely. The information obtained will be used to guide the DOL in developing compliance assistance materials for return to work and to assist lawmakers in drafting policy on reopening businesses.

Continue Reading DOL Invites Feedback On Opening America’s Workplaces Again

In a guidance dated March 18, 2020, and discussed in further detail in this blog post, the Equal Employment Opportunity Commission (EEOC) made it clear that employers are entitled to monitor employees’ temperatures during the pandemic in order minimize the spread of COVID-19.

The Americans with Disabilities Act prohibits medical examinations unless they are job-related and consistent with business necessity, and taking an employee’s body temperature is regarded as a medical examination. Given recommendations by the Centers for Disease Control and Prevention, the EEOC amended its previous guidance that prohibiting temperature taking to allow it in these circumstances. There are, however, a number of issues associated with temperature taking that which employers should consider.

Continue Reading The Do’s and Don’ts of Employee Temperature Checks

On May 1, 2020 the Governor’s Economic Reopening Task Force issued Universal Guidelines for all New Hampshire employers and employees. The guidelines apply to organizations deemed essential and that remained open during the “Stay at Home Order,” as well as to those now set to reopen fully or partially in the coming weeks.

The Guidelines are based on recommendations from the Centers for Disease Control, the Equal Employment Opportunity Commission, and the Occupational Safety and Health Association.  As CDC guidance continues to evolve, businesses should frequently check for updated information. In addition to the general guidelines, industry specific guidance has been developed for  businesses such as retail stores, restaurants, barber shops, hair salons, and golf courses. The Universal Guidelines are designed to strike a balance between ensuring public safety and allowing New Hampshire businesses to remain open.

Continue Reading Stay at Home 2.0 Provides Roadmap for Reopening NH Business and Safety Guidelines for Employers

On Thursday, April 23, the federal Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance for employers to include a provision allowing employers to test employees for the COVID-19 virus without running afoul of the Americans with Disabilities Act (“ADA”).

Continue Reading The Equal Employment Opportunity Commission Allows Employers to Test Employees for COVID-19

During the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC)  is delaying the issuance of “Notice of Right to Sue” letters to workers. While not publicly announced by the agency, officials have confirmed this practice to advocacy groups and media outlets.

The Notice of Right to Sue letter begins the clock ticking as to when plaintiffs must bring a lawsuit against a company for discrimination under federal law. Specifically, once workers receive this EEOC notice, they have 90 days to file a complaint in federal or state court. The 90 days deadline to file in court is a statutory deadline that must be met and cannot be changed by the EEOC.  On the other hand, when the notice that triggers this statutory clock is sent to workers is within the control of the EEOC.  It appears that the EEOC is taking this opening.

Continue Reading LITIGATION: EEOC DELAYS RIGHT-TO-SUE LETTERS AND REMINDS EMPLOYERS ABOUT ANTI-DISCRIMINATION LAWS

The federal CARES Act made provision for previously ineligible individuals to obtain unemployment through the Pandemic Unemployment Assistance program (“PUA”).  The program is administered by the state, but funded with federal money.  It provides up to 39 weeks of assistance for qualifying individuals out of work because of a COVID-19 related reason.

Weekly benefits will equal approximately 50 percent of the individuals’ average weekly earnings.  PUA recipients will also receive a weekly $600 payment, not linked to past income.

Individuals now likely to be eligible for benefits include 1099 self-employed individuals, individuals with a limited employment history, and employees of religious institutions exempt from traditional unemployment.  A list of eligible individuals can be found here.

Until this week workers were unable to apply since a separate platform had to be created for this purpose.  Eligible individuals can now apply at https://www.mass.gov/how-to/apply-for-pandemic-unemployment-assistance.

Workers will initially be paid retroactive to March 20, 2020 but may thereafter seek benefits back to January 27, 2020 if documentation supports their having been out of work for that long.