Wisconsin Manufacturers and COVID-19

March 20, 2020

Wisconsin Manufacturers and COVID-19

The COVID-19 pandemic is creating extreme challenges for Wisconsin businesses.  Hospitality, restaurant and entertainment businesses are either closed or have greatly diminished operations until the crisis eases.  Institutions and office-based businesses are asking their employees to work remotely where duties and technology allow.  Manufacturers face their own challenges – how to address the COVID-19 threat while maintaining a workforce onsite.  This article is a snapshot of some of the current issues and guidance.  As always, please contact an attorney with specific questions about the applicability of laws to your business.

Manufacturers are Not Required to Close

Effective March 17, 2020, Wisconsin Governor Tony Evers issued an emergency order prohibiting mass gatherings of 10 people or more.  However, this order does not require the closing of Wisconsin manufacturing businesses.  Rather, manufacturing, processing, distribution, and production facilities were specifically excluded from the order.  Office spaces were also excluded, provided social distancing and teleworking were implemented as much as possible.

Manufacturers Should Practice Social Distancing and Hygenic Practices

There are no specific OSHA standards covering COVID-19.  However, OSHA has issued guidance to aid employers in creating a safe workplace during the COVID-19 crisis.  The following is a link to a detailed explanation of the OSHA guidance.

To the extent possible, manufacturers should implement social distancing by relocating workers within the facility to create at least six feet of distance between them.

The Centers for Disease Control has published guidance for businesses and employers.  This guidance includes the following recommendations:

  1. Actively encourage sick employees to stay home.
  2. Place posters that encourage staying home when sick, cough and sneeze etiquette, and hand hygiene at the entrance to your workplace and in other workplace areas where they are likely to be seen.
  3. Provide tissues and no-touch disposal receptacles for use by employees.
  4. Instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60-95% alcohol, or wash their hands with soap and water for at least 20 seconds. Soap and water should be used preferentially if hands are visibly dirty.
  5. Provide soap and water and alcohol-based hand rubs in the workplace. Ensure that adequate supplies are maintained. Place hand rubs in multiple locations or in conference rooms to encourage hand hygiene.
  6. Routinely clean all frequently touched surfaces in the workplace, such as workstations, counter tops, and doorknobs. Use the cleaning agents that are usually used in these areas and follow the directions on the label.
  7. Provide disposable wipes so that commonly used surfaces (for example, doorknobs, keyboards, remote controls, desks) can be wiped down by employees before each use.

The following is a link to the CDC’s Interim Guidance for Business and Employers and COVID-19.

Exercise Care in Making Employment Decisions

COVID-19 is creating many difficult employment issues.  A significant factor to consider for any COVID-19 based employment decision is compliance with federal and state workplace anti-discrimination laws.  One such area is the interplay between the American with Disabilities Act and Rehabilitation Act (“ADA”) and COVID-19 based inquiries of an employee’s medical condition.  The Equal Employment Opportunity Commission (“EEOC”) has issued guidance on this topic.

Many businesses are facing an extreme loss of business revenue due to the impact of the virus on society.  As a result, employers are laying off employees.  There is currently no law or regulation preventing a Wisconsin employer from laying off employees due to an economic slowdown caused by COVID-19.  However, federal and state law impose certain notice requirements on employers who meet the criteria of a mass layoff under either the federal Worker Adjustment and Retraining Notification Act (WARN) or Wisconsin’s plant closing law.   WARN governs employers with more than 100 full time employees and Wisconsin’s law applies to those with 50 or more employees.  Employers considering a significant layoff of employees should consult with their attorney with regard to the requirements of these two laws.

When determining which employees to lay off and which to retain, employers must be careful to make the determination based on objective criteria and not on any basis identified as discriminatory under federal or state law.  An example of an objective criteria is “last in, first out.”   There may be many other objective grounds for a layoff decision based upon an employer’s specific operation and needs.  Employers are urged to consult with their attorney before taking action.

Employers are also struggling to address requests by employees to stay home.  Currently, there is no requirement for Wisconsin employers to excuse absent employees who do not want to come to work due to the fear of COVID-19.   However, many employers are allowing concerned employees to utilize accrued paid time off or to stay home without pay, and are excusing such absences.   Beginning April 2, 2020 the Emergency Paid Sick Leave Act and the Emergency Family & Medical Leave Expansion Act will go into effect.  These two laws focus specifically on COVID-19 related employment leave issues.  Both laws affect employers with fewer than 500 employees, including employers of 50 or less.

The following are links to detailed explanations of these two new laws:

The employment issues arising from COVID-19 are both complex and case specific.  Therefore, it is recommended that employers consult with an employment attorney before implementing actions affecting their work force.