Manufacturing and Best Practices for COVID-19

We have been united by this pandemic in so many ways – supporting our frontline workers, caring for our families, and staying home to save lives. This tragedy has brought out the best in so many of us and brought us together in countless ways (even as we work and live more apart than ever before). But it’s also united us in fear. Pervasive, unrelenting fear of death, illness, of the unknown.

As we start to plan for economic recovery and take steps to re-open, fear is a new frontier that leaders must actively manage. We have a long journey ahead. It’s going to stretch all of us. But we must collectively be stronger than our fears. If fear wins, we can’t. Here are six ways you can help your employees fight their fears as they return to work.

1. Communicate, communicate, communicate.

The media is full of terrifying stories about COVID-19 killing people young and old. Sadly, many people have friends and relatives who have died from coronavirus. Fear is everywhere and it is real.

Now is the time to over-communicate. Get into the details. Reach out early and often. Tell your employees exactly what you are doing to keep them safe. Tell them what is happening with their jobs and the company. Even share how YOU as a leader are feeling.  In the absence of real information, people will assume the worst (“Are we closing?” “Do our bosses even care?” “Will I get sick if I go back to work?”).

You don’t have to have all the answers. No one does right now. Be honest and transparent. Saying “We don’t know _______. But we hope for _____.” is powerful and will be appreciated by your employees. Keeping them informed may be all you can do in this time of uncertainty, but at least you are showing up and showing you care.  Share your fears and listen to your employees fears openly.

Even if your employees are furloughed – talk to them! Send them short videos of what is going on.  Write an email.  Have their managers reach out. Maintain that all-important connection.   

And don’t forget the power of making it personal. Reach out one-on-one. Even if it isn’t something you normally do, make an exception for exceptional times.

2. Monitor mental well-being, along with the physical health of your employees.

Uncertainty affects all of us differently. Some people are caring for children who can’t go back to school. Some people are caring for elderly parents who are very vulnerable. Some people have naturally high anxiety. Some people are deeply scared of getting the disease themselves. You just don’t know exactly how individuals are coping. And the stress of being in constant
“fight or flight” mode can be debilitating and depleting.

As we prepare for the new normal of instituting physical health safeguards in our factories like temperature checks, we should also consider how best to monitor and support employees’ mental health as well.

Consider having every supervisor regularly check in with each person and ask them “how are you doing?” Don’t have them ask it as a cursory gesture, but really take a few moments and ask (whether on the phone or in person) how they are really doing. People are struggling with so many new and unexpected hurdles in their lives right now. It can help lessen the burden to be “seen and understood.” And if your workplace has employee support programs or counselling available, now is the time to ensure everyone knows how to access help.

Stay in close touch with your supervisors and if there are a few people that need something extra, figure out if you can help. It may be as simple as a phone call to show them that you care and that you want to be there for them. But monitoring the mental well-being and reaching out to those struggling is not only a good thing to do for your workplace culture, it is the most human thing you can do as a leader during these challenging times.

3. Do (and be seen to do) all the right things on safety.

Staying safe from COVID-19 is not an easy task. It is an invisible enemy. But you should strive to make the steps you take to keep people safe extremely visible. Safety is most likely part of your core company values. And this is the surest way to combat employee fear. If you don’t show everyone all the ways you are working to keep them safe, not only will your values be called into question, but people may not want to come to work.

When you do something to advance workplace safety, make sure everyone knows about it. Better yet, make sure they see it. This is a great place to use the power of short videos to get the word out. Now is the time to double down on safety, even if it is expensive or inefficient. We need to so the right thing and be seen to do the right thing.

4. Be understanding towards employees who aren’t ready to come back to work.

As excited as we all are to re-open and get back to work, there will be people who simply aren’t ready. They are too afraid to resume normal life. Sure, you can make them come to work.  But if you order them back “or else” you must consider the cultural price you will pay for doing this.

One terrified person in your workplace can poison the well with fear.  If you can’t allay their fears one-on-one, perhaps you should consider giving them alternative work to do remotely. If you can’t give them remote work, perhaps consider a grace period for them to return to work once they feel safer. These are unprecedented times and we will have to do unprecedented things to keep our people with us on the journey.

We will undoubtedly lose some great people who decide not to return to work. But we will be far better off if we are seen to offer compromise and options to help people during this tough transition period. We can never go wrong when we lead from a place of understanding, empathy, and respect.

5. Remember the little things.

Do you normally have an office lunch you can’t have anymore? Can you buy your staff lunch remotely?  Can you send them a dozen donuts?  Can you recognize on all-staff emails the amazing things people are doing to support each other?  Maybe these things are out of reach normally or feel awkward, but these are extraordinary times. I guarantee that investing in doing extra things to show that you care and that you are there (even for laid off employees) will be more appreciated today than any past office picnic ever was.  These little things include just reaching our one-on-one to ask how someone is doing and thank them for their hard work, dedication, or just hanging in there.

6. Fight fear with inspiration and possibility.

Crisis is scary but it also creates opportunity. An opportunity to learn new things, to pivot, to bond. Don’t get me wrong, nothing can make good of this horrible situation, but we can work to make it better. We can help our employees see challenges to overcome that might also have silver linings.

This is where your leadership comes in. Inspiration is the antidote to fear. Your employees need thoughtful, inspired leadership that helps them see the light. Perhaps start with your own search around how to reframe coronavirus not as something happening TO you, but as something happening that is a challenge FOR you to overcome.

Share your personal journey and thinking. Tell people how you are finding the light at the end of the dark tunnel. Inspire them by communicating how we can try to rebuild our post-COVID world stronger and better. This is the time for our words to be powerful, to raise people up. Help them see possibilities. Give them hope. Remind them that we will get through this.

Stories are also powerful. They are how we, as humans, make sense of the world. Tell your people real stories about the good, positive things that are happening to help counterbalance all the bad news. More than 2,000 Ohio manufacturers have stepped up to make protection equipment for frontline workers! If that’s not a powerful good news story I don’t know what is.

Together, we make the things that keep people safe. We make the things that run the world. That’s important. And a real reason to be proud about getting back to work. If we can make our pride bigger than our fear, we will successfully navigate this crisis together.

Governor DeWine is officially “re-opening” Ohio manufacturing as of May 4^th. The rules outlined here are the main guidance required to qualify to re- open at this time. 

The governor said the use of face coverings is no longer mandatory. But it remains a strong recommendation, he and Ohio Health Director Dr. Amy Acton said.

Ohio Manufacturers' Association, (OMA)  has confirmed that face coverings has been moved from a mandated action to a "recommended best practice" under the administration's safety guidance for manufacturers.

The guidelines continue to reinforce most of the things manufacturers are already doing such as creating six foot distances between employees, encouraging working from home if you can, requiring regular handwashing, staggering or limiting the arrivals of employees and guests, daily symptom checking, and mandating daily disinfections. 

Based on our health and safety experts, sometimes face shields may be most appropriate as face coverings and sometimes face masks – depending on your workplace needs. Both will provide some protection from spreading the virus through sneezes, breathing, etc. Neither provides full protection, of course, like an N95 mask might. Cotton masks may be disadvantageous in loud environments where mouth movements are important or when potential hazards involving masks potentially getting stuck in machinery is an issue. Consider what will work best for your plant and your people.  

MAGNET and the Ohio Manufacturers' Association, along with Ohio MEP, have been setting up earmarked stockpiles of cotton face masks and face shields ready for purchase by manufacturers so they won’t face shortages and can continue to stay safe and open. We will share more information about how to purchase these cotton masks and face shields soon. Meantime, you can purchase protective equipment through the Exchange and we encourage you to do so if you find products that meet your needs.

Many of you have likely received your Payroll Protection Program (PPP) funds from the Small Business Administration. If you haven’t, the second round will hopefully be your opportunity. There is still a tremendous amount unknown about this grant, particularly about how forgiveness will work. New details and new questions emerge almost every day. Here is an informative Forbes article that delves into some of the complexities of this grant that haven’t yet been worked out.

Meanwhile, there are things you can do to help well-position your company for loan forgiveness. We make no guarantees that these will work or be required, but they are what many lawyers are recommending, and many manufacturers are currently doing. We appreciate that some of this advice might be overkill, but sometimes better safe than sorry:

1. The covered period of potential forgiveness begins on the day you get your money and lasts for 8 weeks.  See below for more considerations regarding whether to hire everyone back during this 8-weeks.
   • You could hire everyone back immediately upon receiving your money (if they aren’t already working of course). This would maximize your loan forgiveness, assuming that you had the same or more full-time equivalent employees as the same time in the previous year (or Jan 1st through Feb 15th of 2020 at your discretion).
   • But, based on business conditions, maybe you won’t hire everyone back and then you will have to manage the 75/25 split of payroll and other expenses.  Subject to further SBA guidance and interpretation, during the eight week period, non-payroll expenses cannot exceed 25% of the total amount of PPP-paid expenses.  To be clear, this rule is very confusing.  There is debate and contradictions currently in the rules of whether this 75% applies to what is actually paid during the 8-weeks or just what is given in the loan.  To be conservative, if you don’t hire anyone back, you may not be able to benefit from forgiveness of the payment of mortgage, utilities, rent, etc.  However, it appears you may be able to ignore this rule IF you hire everyone back before June 30^th, 2020 even if you didn’t hire them back during the 8 week period.  Obviously, you won’t get loan forgiveness for the payroll costs not paid during that 8-week period, but you potentially will get your mortgage, utilities, and rent paid for.  We will update you as the SBA issues its future guidance on these issues.
   • There is extra complication in bringing your employees back for the 8 weeks because you likely don’t want to hire them back and the let them go again, and some of them (the ones in Ohio making less than $50,000-60,000, depending on how many dependents are in their household) are making more money on unemployment.  You will need to consider this when you are ramping back up, at least until July 25^thwhen the extra federal incentive ends for everyone on unemployment.
2. Establish separate ledger accounts for expenses to track that you are using PPP dollars for the allowable payroll (up to a pro-rated $100k cash compensation per employee), mortgage interest, rent, benefits, and utilities.  Allowable payroll costs include the full amount of retirement benefits, healthcare benefits paid by the employer, and employer state and local (but not federal) payroll taxes.
3. Some lawyers recommend even separating paychecks for those employees who make over $100K so that they get their >$100K portion of their salary separate from the under $100K portion – again so that it is tracked easily.  Discuss this further with your payroll service provider.
4. Save all documentation regarding how the funds are expended including invoices, cancelled checks, payment receipts, payroll reports, transcripts of accounts, etc.
5. There is a line in the bill that references that eligible forgiveness will come from “costs incurred and payment made during the covered period payroll costs.”  This presents a problem that may be fixed through further clarifications, but prepayments probably would not be allowed and neither would paying your bills after the period be allowed.  Prior to new SBA guidance being issued, this would mean that you will want to cut your last payroll checks, get your bills in and pay them all on the last day of the 8 weeks to maximize forgiveness.

The Ohio Manufacturing Alliance to Fight COVID-19 (website here) has been hard at work helping manufacturers retool and repurpose to make Personal Protection Equipment for frontline workers. We have had successes (such as helping make one million testing swabs and one million reusable face shields), and dozens of other companies have retooled to make many other desperately need products. 

To help get this equipment in the hands of those who need it, we have set up a new online marketplace called the Ohio Emergency PPE Maker’s Exchange. It’s primarily designed for smaller purchases of PPE from retooled or repurposed manufacturers. Please share this exchange link with anyone you know who is in need of PPE, especially as reopening begins and all manufacturing workers will need protective equipment. These products are made through the ingenuity, hard-work, and perseverance of so many Ohio manufacturers and we should all be very proud to support them.

1. Cash is king: Do you know if you have enough? If you come up short, reach out to your bank to try and leverage your line of credit.

2. Do “zero-based budgeting.” Examine your entire P&L to determine what is essential vs. non-essential. Then look at headcount; who are your A-players? Do whatever you can to keep them, even if they aren’t productive right now. They are impossibly hard to find, so do whatever it takes.

3. And, if after you leverage your line of credit you still don’t have enough, check out:

   1. SBA’s disaster relief loans (up to $2M) –we have more information we can share if you need it. Click here for more information and see below:  

      1. Low-interest loans of up to $2 million are available for small businesses and private non-profits.
      2. Loans may be used to pay fixed debts, payroll, accounts payable and other bills and have repayment options of up to 30 years. 
      3. Interest rates are 3.75% for small businesses and 2.75% for private non-profits.
      4. Need help filling out the application? Access these step-by-step instructions.
         
         
   2.  SharedWork – a voluntary across-the-board furlough program so that you can cut your company’s hours and  wages, recoup them through unemployment, and not have to fire anyone.

Simply put, consult your lawyer and insurance broker at the same time to see how you are covered for business interruptions or employee issues. This is a complex topic spanning multiple forms of insurance, each potentially with its own (often unclear) definition of what triggers a reimbursable loss (e.g., what if you have to shut down based on exposure versus actual COVID-19 infections?)  Having this discussion now, sets you up to have your proverbial ducks in a row in case you are impacted.

Click here for more details.  

We consulted the experts in labor law for a look at “Labor and Employment Laws in a COVID-19 World.” This information comes directly from Kastner, Westman & Wilkins, LLC. For more information feel free to email Tom Green at tgreen@kwwlaborlaw.com.

Below are some answers to frequently asked questions (FAQs) regarding the employment challenges manufacturers are facing.  What follows is not legal advice, but instead general guidance relating to the current pandemic.  Always consult legal counsel with questions about specific employment decisions impacting your workplace.  

Labor & Employment Laws in a COVID-19 World

Below are some answers to frequently asked questions (FAQs) regarding the employment challenges manufacturers are facing.  What follows is not legal advice, but instead general guidance relating to the current pandemic.  Always consult legal counsel with questions about specific employment decisions impacting your workplace.

• Can an employer send an employee home if the employee displays symptoms associated with COVID-19?
  • According to the Centers for Disease Control and Protection (CDC), employees who experience symptoms associated with COVID-19 such as cough and shortness of breath should leave work and stay home until they are symptom free for 24-hours without use of symptom-altering medicines.
  • With this and several other questions, employers should err on the side of employee health and safety. Employers can reverse the effects of a hastily-made decision to send an employee home, but it cannot reverse the effects of a delayed decision that causes an employee to become ill.

• Can an employer send an employee home if the employee has travelled to a location with reported cases of COVID-19, but is not showing signs of the disease?
  • Perhaps, depending on the severity of the outbreak and the employee’s potential exposure. The CDC currently recommends that travelers returning from China, Iran, South Korea, the United Kingdom, Ireland, and most countries in Europe stay home from work for 14 days until it is clear they do not have symptoms of the disease. Even employees traveling domestically should be cautious, especially when traveling to major metropolitan areas like New York City. Employers can question employees about their travel to these areas even if the travel was for personal reasons.
  • If the employee’s travel was not to one of the designated high-risk zones, and the employee reports he or she did not have close contact with an individual suffering from COVID-19, then the employee should be permitted to return to work.

• Can an employer take employees’ body temperature before they begin work?
  • Yes, but there are risks. In Ohio, Governor Mike DeWine has recommended that employers take the body temperature of all employees each day. This practice is not mandatory.
  • There are also unanswered questions about whether time spent receiving a temperature check is time worked that must be paid to employees. In the manufacturing sector, a worker whose employment is unrelated to the production of equipment used by medical providers would likely not be required to receive pay for having their body temperature checked. Please be sure to consult with legal counsel on this and other wage/hour issues.
  • Under the Americans With Disabilities Act, employers are typically prohibited from performing medical examinations on their employees. However, the EEOC has previously provided guidance that suggests if COVID-19 becomes widespread in the employee’s community, employers may take employees’ temperatures because the disease poses a direct threat to other employees. Companies should recognize that many medical conditions cause fevers, and it is not the only symptom associated with COVID-19.

• What should an employer do if an employee tests positive for COVID-19?
  • Ensure that the infected employee stays home from work and does not return until cleared by a medical professional.
  • Do not disclose the infected employee’s name to coworkers and keep any medical information about the employee confidential.
  • Protect workers in close contact with the sick employee by using safe work practices and PPE.

• Can employees refuse to come to work due to their fear of becoming infected with COVID-19?
  • Probably not. Under OHSA regulations, an employee may only refuse a work assignment that involves “risk of death or serious physical harm” under certain circumstances.  Recent OSHA guidance regarding COVID-19 states that most workplaces, including manufacturers, are at a low risk for exposure to the virus. Based on current information, it seems unlikely that an employee could lawfully refuse a work assignment based on the risk of exposure to COVID-19.
  • That said, employers are of course able to relax their attendance policies to address employees with a concern about COVID-19. Balancing employee concerns and the need to operate the business is the most difficult part of the pandemic, and is different in each business, and may even be different among positions in the same business.

• Can an employer be held liable if an employee becomes ill while at work?
  • Employers are required to comply with the OSHA “general duty clause”, which mandates employers maintain “a workplace that is free from recognized hazards.” As with other contagious diseases, employers may be liable if the employer allows or directs a known infected employee to come to work and then exposes other employees to the risk of infection.

• Can an employer require employees to use accrued paid time off or vacation time for absences related to COVID-19?
  • It depends on whether the employer and employee are covered by the new Families First Coronavirus Response Act. Effective April 1, 20120, manufacturers with less than 500 employees are covered by the new law.  Part of the law states that employers cannot force an employee to substitute paid sick leave provided by the Act for other types of leave like vacation or PTO. 
  • If a manufacturer has more than 500 employees, it is not obligated to follow the new requirements of the Act and should continue to apply its existing leave policies in a consistent manner for COVID-19 related leave.
  • You can find more information on the Families First Coronavirus Response Act here or by viewing the FAQ section dedicated to the FFCRA below.

• Can an employer advance paid time off or vacation time to employees to cover absences related to COVID-19?
  • No, if the paid time off is an advance of paid sick time granted by the Families First Coronavirus Response Act.
  • Yes, if the paid time off is provided by an employer’s existing leave policy.  If leave is advanced, employers should consider modifying or creating new policies that require employees to repay the advanced time against future accrual.
  • You can find more information on the Families First Coronavirus Response Act here or by viewing the FAQ section dedicated to the FFCRA below.
• May an employer dock an employee’s pay for time spent away from work due to COVID-19 if he or she has exhausted all vacation time/sick leave/PTO?
  • It depends on the employee’s classification. Employers may deduct pay for non-exempt employees without question, but deductions for exempt employees is appropriate only in certain circumstances depending on who initiated the absence.

• What should an employer do if it is forced to temporarily lay off employees or significantly reduce their hours?
  • Advise employees to consider filing for unemployment benefits, even if they are only partially unemployed. Ohio Executive Order 2020-03D streamlines the unemployment application process for those employees affected by COVID-19. 

Families First Coronavirus Response Act

Congress enacted the Families First Coronavirus Response Act (the “Act”) that governs many aspects of paid leave during this crisis. Below are some answers to frequently asked questions (FAQs) regarding the Act, who is covered, and how to administer its requirements.  What follows is not legal advice, but instead is general guidance relating to the Act.  Always consult legal counsel with questions about specific employment decisions impacting your workplace.

• Which manufacturers are covered by the Families First Coronavirus Response Act?
  • Only those that employ fewer than 500 employees are covered by the Act. The law calls these employers “covered employers”. If an employer has 500 or more employees, it is not required to provide the paid leave described below.
    
    
• How does a manufacturer calculate whether it employs 500 employees?
  • Employers must count all full-time and part-time employees within the United States, including employees on leave, temporary employees who are jointly employed by two entities, and day laborers supplied by a temporary agency.
  • Typically, a corporation (including its separate establishments or divisions) is considered to be a single employer and its employees must each be counted towards the 500-employee threshold. Where a corporation has an ownership interest in another corporation, the two corporations are separate employers unless they are joint employers under the FLSA with respect to certain employees. If two entities are found to be joint employers, all of their common employees must be counted in determining whether the employer is covered by the Act.
  • In general, two or more entities are separate employers unless they meet the integrated employer test under the Family and Medical Leave Act of 1993 (FMLA). If two entities are an integrated employer under the FMLA, then employees of all entities making up the integrated employer will be counted in determining employer coverage for purposes of the Act.
  • If an employer’s headcount is in doubt, please be sure to consult with legal counsel.
    
    
• Is the 500-employee threshold calculated per worksite?
  • No, private employers meet the 500-employee threshold if they employ 500 or more employees within the United States regardless of how many employees are employed at a single worksite.
    
    
• Are small businesses obligated to follow the Act too?
  • Employers with fewer than 50 employees may claim an exemption to parts of the law if the requirements in the Act would threaten the viability of the company as a going concern. If an authorized officer of the business determines the business meets one of the following qualifying reasons, the business is not required to provide paid FFCRA leave (either sick leave or expanded FMLA leave) to employees that are unable to work due to the need to care for a son or daughter whose school or childcare provider is closed or unavailable:
    • The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenue and cause the business to cease operating at a minimal capacity;
    • The absence of the employee(s) requesting leave would pose a substantial risk to the financial health or operational capabilities of the business because the employee’s specialized skills, knowledge of the business, or responsibilities; or
    • There are not enough other workers who are able, willing, and qualified to perform the labor provided by the employee(s) requesting leave, and this labor is needed for the business to operate a minimal capacity.
  • If an employer claims an exemption, it is still obligated to provide paid FFCRA leave to other eligible employees that require leave for qualifying reasons other than the one described above.
  • Employers must document the determination that they are exempt and maintain the documentation for four years.
  • If an employer’s exemption eligibility is in doubt, please be sure to consult with legal counsel.
    
    
• When did the Act become effective?
  • The Act became effective April 1, 2020. Eligible employees could begin taking leave provided by the Act on that date.
    
    
• If my business is a “covered employer”, what am I required to do?
  • Very broadly, covered employers must provide eligible employees with a designated amount of paid time off due required due to one of the reasons listed in the Act.
    
    
• What employees are eligible for the leave provided in the Act?
  • All employees of covered employers are eligible for two weeks (up to 80 hours) of paid sick time if they require leave due to one of the reasons listed in the Act. Employees who have been employed for 30 or more calendar days may be eligible for additional paid leave as set forth below.

• How much are employees paid for sick time created by the Act?
  • Pay an eligible employee his or her regular rate of pay if:
    • The employee needs leave because the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
    • The employee needs leave because the employee has been advised by a health care provider to self-quarantine or isolate related to COVID-19.
    • The employee needs leave because the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
  • Pay an eligible employee 2/3 of his or her regular rate of pay if:
    • The employee needs leave because he or she is caring for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
    • The employee needs leave because he or she is caring for their son or daughter whose school or place of care is closed (or child-care provider is unavailable) for reasons related to COVID-19.
    • The employee needs leave because he or she is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services. (No other reasons have been specified yet).
  • It depends on the reason the employee needs leave. Apply the calculations described below.

• How much paid time off must an employer provide to eligible employees?
  • Full-time employees receive 80 hours of paid sick time to use for any of the reasons listed above.
  • Part-time employees receive the number of hours that is equal to the number of hours that the employee works, on average, over a 2-week period. The employee may use these hours for any of the reasons listed above.
  • Both full-time and part-time employees may receive up to an additional 10 weeks of paid leave if: (1) the employee needs leave because he or she is caring for their son or daughter whose school or place of care is unavailable for reasons related to COVID-19 and (2) the employee has been employed with the employer for at least 30 calendar days before the leave starts.
  • Remember: any leave taken for this reason is paid at 2/3 the employee’s regular rate of pay.
• It depends on whether the employee is full-time or part-time and depends on what reason(s) the employee needs leave. Apply the calculation below.

• Are there limits on how much an employee can receive for paid leave?
  • Yes, apply the calculations listed below.
    • The employee cannot receive more than $511 per day and $5,110 total (over a 2-week period) if:
      • The employee needs leave because the employee is subject to Federal, State, or local quarantine or isolation order related to COVID-19.
      • The employee needs leave because the employee has been advised by a health care provider to self-quarantine or isolate related to COVID-19.
      • The employee needs leave because the employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis.
    • The employee cannot receive more than $200 per day and $2,000 total (over a 2-week period) if:
      • • The employee needs leave because he or she is caring for an individual subject to a Federal, State, or local quarantine or isolation order related to COVID-19.
        • The employee needs leave because he or she is experiencing any other substantially similar conditions as specified by the Secretary of Health and Human Services. (No other reasons have been specified yet)
        • Remember: employees are paid 2/3 their regular rate of pay for the two reasons listed above.
    • The employee cannot receive more than $200 per day and $12,000 total (over a 12-week period) if:
      • • The employee needs leave because he or she is caring for their son or daughter whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.
        • Remember: employees are paid 2/3 their regular rate of pay for the reason listed above.

• • If most schools are closed in Ohio, are all employees eligible to receive paid leave to care for their son or daughter?
    • No, an employee is eligible for leave to care for their son or daughter whose school or childcare provider is closed or unavailable only if employee actually needs to, and is, caring for their child. According to the Department of Labor, “Generally an employee does not need to take such leave if another suitable individual – such as a co-parent or co-guardian – is available to care for the [child’s needs]”

• • If an employer already has a paid sick leave policy, can the employer require employees to use that leave instead of the leave created by the Act?
    • An employee may elect to use leave created by the Act before using accrued paid vacation, personal, medical, or sick leave from the employer’s pre-existing policies.
    • Employees may supplement the pay received for leave created by the Act with accrued paid vacation, personal, medical, or sick leave.
      • For example, if an eligible employee requires time off to care for a son or daughter whose school was closed due to COVID-19, the employee would receive 2/3 their regular rate of pay for such periods of leave. The employee may use accrued paid vacation, personal, medical, or sick leave from the employer’s pre-existing policy to pay for the 1/3 of wages not covered by the Act. 
      • An employer may require employees to use accrued leave to supplement the employee’s wages if the reason for leave is to care for a son or daughter whose school or childcare provider is closed or unavailable.
    • If an employer closes a worksite, does the employer still have to provide paid leave created by the Act?
      • If an employer furloughed, laid off, or terminated an employee because of lack of work, the employee is not eligible for paid leave created by the Act. This is true regardless of whether the employer closed the worksite due to a Federal, State, or local directive related to COVID-19.
    • Is Ohio’s Stay-at-Home Order a “quarantine or isolation order” according to the Act?
      • Yes, but that does not mean all employees are eligible for paid leave. The Department of Labor has said, “An employee subject to one of these orders may not take paid sick leave where the employer does not have work for the employee.”
      • For example, if a manufacturer laid off an employee due to the downturn in business caused by the stay-at-home order, the employee would not qualify for paid leave under the Act. In the Department of Labor’s view, the employee is “unable to work” because the customers were subject to the stay-at-home order, not the employee. Similarly, if the entire plant is closed due to a stay-at-home order, the employee is unable to work because the business is subject to the order, not the employee. In either event, the employer did not have work for the employee to complete, and as a result, the employee is not entitled to paid leave under the Act.
    • Is there tax relief available for employers related to this law?
      • Yes, according to the Department of Labor, every dollar paid for leave created by this Act will be “100% covered by a dollar-for-dollar refundable tax credit available to the employer”.
      • Consult with your tax advisor regarding the tax implications of the Act.
    • Are employers required to inform employees about this new law?
      • Yes, covered employers must post in a conspicuous place on its premises a notice of the Act’s requirements. View a copy of the model workplace poster published by the Department of Labor . 
      • More information on notice requirements – such as where to post the notice when most of a workforce is telecommuting – can be found here.

   

  What Is “Close Contact” and What to Do after Coming in Close Contact with an Infected Person?

  The Center for Disease Control and Prevention warns that individuals that came in close contact with an infected person are at risk for contracting COVID-19 and should remain at home to limit the spread of the disease. For COVID-19, the CDC defines “close contact” as being about six feet from an infected person for a prolonged period while not wearing recommended personal protective equipment.  Close contact also includes having direct contact with infectious secretions of a COVID-19 case like being coughed on.

  There is no identifiable risk for individuals that had brief interactions with an infected person such as walking past the infected person. However, individuals that shared the same indoor environment (e.g. an office or conference room) with an infected person for a prolonged period are at a low risk of contracting the virus that causes COVID-19.  According to the CDC, those individuals at a low risk are not required to self-isolate unless they begin to experience symptoms associated with COVID-19.

  The virus is thought to spread mainly from person to-person, including between people who are in close contact with one another (within about six feet) and through respiratory droplets produced when an infected person coughs or sneezes. It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or possibly their eyes, but this is not thought to be the primary way the virus spreads.

  If an employee is positive for COVID-19, steps must be taken to immediately prevent further spread of the virus. You should send home all employees who had close contact with that employee for a 14-day period of time to ensure the infection does not spread. If possible, ask the infected employee to identify all individuals who worked in close proximity (within six feet) with them in the previous 14 days to ensure you have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws.

  After the infected employee is removed from the facility, employers should close off areas used by that person. If possible, open outside doors and windows to increase air circulation in the area. Wait 24 hours (or as long as possible) before you clean or disinfect. Researchers have found that the virus that causes COVID-19 is detectable for up to three hours in aerosols, meaning an infected person’s sneeze or cough could leave particles of the virus floating in the air hours later. After the waiting period, clean and disinfect all areas used by the infected person, such as offices, bathrooms, common areas, shared electronic equipment like tablets, touch screens, keyboards, remote controls, and ATM machines.

  If you have more questions, please contact the author of this advice, Tom Green, at tgreen@kwwlaborlaw.com.
  

   

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The CARES Act provides for a loan of up to 2.5X your average monthly payroll including to help pay for 8 weeks of payroll, healthcare, rent and utilities – you need to talk to your bank:

• The SBA disaster loan is still in place for up to $2M loans, but the newly-passed CARES act created a new loan up to $10M that can be partially or fully forgiven. To qualify you must be less than 500 people domestically.
• Amount of loan is up to 2.5X the total monthly payroll costs from 2019. 
• In general, the amount that is forgivable is the amount that you spend on payroll, healthcare, interest on mortgage debt, rent, and utilities over an 8-week period during this coronavirus crisis.  There will be many more details on exceptions and how to claim this forthcoming in future government regulation releases.
• There are also much larger loans for companies between 500 and 10,000 employees that have significantly tougher restrictions, more information on those can be found here. 

You can defer social security tax and may be able to claim tax credits

• Everyone can defer the 6.2% social security tax for 2020 and pay it over two years (half on Dec 31, 2021 and half on Dec 31, 2022).
• If you had operations suspension or a 50% reduction in quarterly receipts when compared to prior year’s same quarter, you may be eligible for tax credits up to $10,000 per person based on wages for companies affected by COVID-19
• If you already have an SBA loan, you will have no payments on principal, interest or fees for six months (it is unclear whether this is forgiven or just deferred). 
• More details on loans for small businesses can be found here. 
• There are many more tax implications regarding AMT, carry back losses, business interest deduction, and more to check out here.

There is a lot in the new bill to expand and pay for unemployment, this may affect your strategy for retaining people

• The state has made it much easier for an employee who has been laid off to get unemployment, and it has extended those benefits to those who are forced out of work due to coronavirus.

• Your future rates will likely not go up directly based on the number of people let go in your facility, they will be “mutualized” across all employers. There may be future federal relief so that rates don’t go up too much in the future as well.

• Below is a summary of the reasons under the new CARES Act.  A “slow down” in your business not one of the reason, but “closed” is included (however, Ohio unemployment guidance suggests that slowdown is a reason to get unemployment, so future guidance from the federal government will be required). “Quitting” is also included below, but only “as a direct result of the coronavirus pandemic” which is not yet defined.  Ohio is saying, as of March 29, 2020: “If an asymptomatic employee imposes a self-quarantine because of the coronavirus, will they be eligible for unemployment benefits? In most cases, no….”

(1) The employee is diagnosed with coronavirus,

(2) The employee is experiencing symptoms of coronavirus and is seeking a diagnosis or test,

(3) A member of the employee’s household has been diagnosed with coronavirus,

(4) The employee is caring for a family member or household member who has been diagnosed with coronavirus,

(5) The employee is caring for a child or other household member whose school or daycare facility has been shut down due to the coronavirus pandemic,

(6) The employee is unable to reach his or her workplace due to quarantine imposed as a direct result of the coronavirus pandemic,

(7) The employee is unable to reach the place of employment because a health care provider has advised him or her to self-quarantine due to concerns related to coronavirus,

(8) The employee “was scheduled to commence employment and does not have a job or is unable to reach the job” as a direct result of the coronavirus pandemic

(9) The employee has become the breadwinner or major support for a household because the head of the household died from coronavirus,

(10) The employee quit his or her job as a direct result of the coronavirus pandemic, or

(11) The employee’s workplace as closed because of the coronavirus pandemic.

• Second unemployment was extended to independent contractors, part-time workers, and self-employed individuals. 

You must extend sick leave and in certain cases paid-FMLA if you are under 500 employees, but it will be paid fully by the government – and you need to put up a poster on this now

• According to the Families First Coronavirus Response, employees affected by COVID-19 must be given 80 hours of sick leave that covers many coronavirus related issues including having to self-quarantine, being sick, or taking care of family or out-of-school kids.  Further, even you are under 50 people and FMLA doesn’t normally apply to you, you also must pay (at a reduced salary) for 10 weeks of required FMLA leave if one of your employees needs to take care of out-of-school kids.  The government will reimburse these expenses through taxes, potentially through an advance on the payment rather than on the back end. Details have not yet been released on how to get those funds back.  Please see more details about amounts and details from Tom Green, an employment lawyer at KWW are in the previous HR section.
• You also have to put the Families First Coronavirus Response poster up in your facility.

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• First, the chart below shows the risk by age – this disease is very dangerous to at-risk populations and those over 70 years old. As much of our employees are under 70, this may be comforting.  But it emphasizes that the risk to the families of your employees are high.  Do you have employees who care for elderly parents?  What about those near retirement?  Do you have any people with asthma, auto-immune disorders?  This is the world that your people are living in.

• What are you doing provide accommodations for and comfort to those who are at risk, or those who are fearful of being at risk? What communications are you sending? Are you able to increase the distance your employees need to be near each other? Are you able to make some exceptions for those who may be at risk?

  Working remotely may not be an ideal option for most of you. But if some of your team is remote, you should consider a business license to Zoom, WebEx, Skype, or Microsoft Teams which is likely already loaded or available for download if you use Office365. Click on this article for other thoughts on going remote.

• You can do A LOT to provide a personal touch that helps calm your employees and shows them you respect their efforts and dedication by; being physically present, talking openly about future plans, not having too many closed door meetings, communicating with your staff every day, making sure you know about your employees’ personal concerns (even if all you can do is be empathetic) and ensuring your managers are keeping up with the emotional state of their direct reports.

• Oh, and don’t forget that there are some crazy rumors out there.  Stop the spread of misinformation by debunking those for your employees. Here are printable lists of myths debunked.
  

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• I believe that our manufacturers, are the foundation of our economy. And when we come out the other end of this crisis, we can be stronger than before. We can choose to use any extra time we have to plan, to look for talent now, to increase our roster of A-players later, to start thinking of how to minimize future supply chain disruption through reshoring products, and to plan for 18 months from now when we can again invest in new ways of doing things. There is always a silver lining…even if we have a marathon to get through first. What opportunity is just beyond our reach today that, with your strategic vision, you can aspire to? Maybe today is too soon to think about it, but when the day-to-day crisis management becomes overwhelming, perhaps sitting back to think about the future again is the right thing to do.

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Some manufacturers locally and around the world are going to great lengths to protect themselves and their employees.  Here are some of the things that others are doing.  Please note that we are giving you the best ideas we have seen to figure out what will work for your company. More details and complete guides can be found here, here, and here.

• All office teams work remotely (sales team, marketing teams and finance teams as well as back-office). When this isn’t possible, spread out remaining staff as far as possible and hold not in-person meetings – use remote tools even room-to-room.
• People should keep 6 feet distance when they talk and even some things are being rearranged in the plant to accommodate others working 6 feet from one another if possible.  As this may become the new normal, any steps you take now to spread areas out will likely be good for the future too.
• Temperature checks before entering the factory gate (use IR scanning thermometer that does not require touching skin or ear temperature with an alcohol swab in between). Note: there are legal implications for this (see here). A person who shows temperature above 99.5 degrees is not allowed to enter.
• Wearing a masks or other PPE while in the factory (there is a shortage now, so this is not likely useful).
• All doors are left open or even removed when appropriate to eliminate surfaces.
• Increase ventilation rates and increase the percentage of outdoor air that circulates into the system
• Buy all no-touch disposal receptacle or remove lids that require contact to open.
• Disinfect all touched surfaces between each shift.
• Eliminate all routine shift hand-off meetings or limit them to just particular people or do them virtually.
• If you can move from 1 or 2 shifts to 3 shifts and keep each shift with the same people each day, then if one shift is sick the others are protected. This arrangement can also work by have one crew for part of the week and one crew for the other part of the week.  This may also accommodate shifting child care schedules.
• Stagger shift start/stop times, break times, and lunchtimes to minimize congregations at the time clocks or break areas.
• Zone the factory and prohibit employees from wandering into zones where they do not need to be to perform their jobs.
• Isolate key personnel without whom the factory cannot operate (e.g., boiler operators, wastewater treatment engineers, lead electricians, maintenance, etc.) to prevent them from getting ill.
• Shutdown the plant when production is not needed (even if you ramp on and off on a daily basis). Every bit of time not spent around other people may eliminate the spread of the virus.

These are all in addition to the specific guidelines from Ohio's Executive Order that include:

• Allow as many employees as possible to work from home by implementing policies in areas such as teleworking and video conferencing
• Actively encourage sick employees to stay home until they are free of fever
• Separate employees who appear to have acute respiratory illness symptoms from other employees and send them home immediately. Restrict their access to the business until they have recovered.
• Reinforce key messages – stay home when sick, use cough and sneeze etiquette and practice hand hygiene – to all employees, and place posters in areas where they are most likely to be seen. Provide protection supplies such as soap and water, hand sanitizer, tissues and no-touch disposal receptacles for use by employees.
• Frequently perform enhanced environmental cleaning of commonly touched surfaces, such as workstations, countertops, railings, door handles and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label. Provide disposable wipes so that commonly used surfaces can be wiped down by employees before each use.

If you are looking for signage to put inside here plant, please click here.

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• Machine control panels
• Tow motor and other vehicles
• Packaging centers
• Shipping/receiving offices and docks
• Locker rooms
• Restrooms
• Break/lunch rooms
• Time clocks
• Administrative offices
• Air conditioner coils and drip pans
• Shared computers, telephones and office supplies

All surfaces are not the same, it’s critical to follow the proper procedure for disinfecting based on the type of surface being disinfected.  The specific procedure for disinfecting the variety of surface at your manufacturing facility varies depending upon the type of cleaner you are using (make sure it is EPA registered product against coronavirus and that you leave it on the surface for long enough).  One local companies products are sure to do that if you are concerned.

Access the EPA List here.

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