One Step At a Time: New York Issues Guidance for Businesses as Parts of State Reopen

New York State has begun its slow and deliberate process of re-opening on May 15, 2020. Governor Cuomo has established both a regional and industry approach for how the state will re-emerge following the state-wide Executive Order restricting all non-essential businesses since March. The process will be gradual, however, with restrictions on non-essential business in much of the state, including New York City and the surrounding suburbs, potentially continuing through May 28, 2020.

The first step in New York’s re-opening process is a regional requirement. New York will require a region to satisfy all of the 7 health metrics that the state announced and that are being tracked on a region-by-region basis before non-essential businesses can re-open for business.

Once the region is deemed ready to begin re-opening, the non-essential businesses will be permitted to open in a phased approach, with at least two weeks in between each phase. Employers need to determine which of the four phases, set forth below, they fit in to determine when they will be permitted to open once the region has been cleared.

Phase One:

• Construction
• Agriculture, Forestry, Fishing and Hunting
• Retail - (Limited to curbside or in-store pickup or drop off)
• Manufacturing
• Wholesale Trade

Phase Two

• Professional Services
• Retail
• Administrative Support
• Real Estate / Rental & Leasing

Phase Three

• Restaurants / Food Services

Phase Four

• Arts / Entertainment / Recreation
• Education

On May 14, 2020, Governor Cuomo issued the first wave of industry specific guidance for those industries included in Phase One of the State’s reopening plans. For each of the listed Phase One industries, New York has now issued (i) Summary Guidelines, (ii) Detailed Guidelines, and (iii) a Business Safety Plan Template.

SUMMARY GUIDELINES

The Summary Guidelines are set up as charts, laying out what are considered mandatory requirements to allow safe re-opening in the industry, as well as what would be considered non-mandatory best practices. The Summary Guidelines for each industry address physical distancing, protective equipment, cleaning and hygiene, communication, and screening. Although the guidance varies from industry to industry, common mandatory requirements across all industries, include:

• Social Distancing (6 ft. distance between personnel, unless safety or core function of the work activity requires a shorter distance);
• Face Coverings (for any time personnel are less than 6 ft. apart from one another);
• Indoor Workforce Limit (details are industry dependent);
• Occupancy Limits for Tightly Confined Spaces (e.g. elevators) (should be occupied by only one individual at a time, unless all occupants are wearing face coverings and if occupied by more than one person, keep occupancy under 50% of maximum capacity);
• Social Distancing Markers (using tape or signs that denote 6 ft. of spacing in commonly used and other applicable areas);
• Limit In-Person Meetings (Use tele- or video-conferencing whenever possible);
• Establish Designated Pick-Up and Delivery Areas (limiting contact to the extent possible);
• Face Coverings Must be Provided by the Employer at No Cost to the Employee;
• Limit Sharing of Objects and Discourage Touching of Shared Surfaces (when in contact with shared objects or frequently touched areas, wear gloves (trade-appropriate or medical); or, sanitize or wash hands before and after contact);
• Mandatory Hand Hygiene Stations (including handwashing with soap, water, and paper towels, as well as an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible);
• Regular Cleaning and Disinfection (frequency industry dependent);
• No Shared Food and Beverages (e.g. buffet-style meals);
• Post Signage (to remind personnel to adhere to proper hygiene, social distancing rules, appropriate use of PPE, and cleaning and disinfecting protocols);
• Maintain a Continuous Log of Every Person Who Has Contact With Workers at the Worksite (exclusions from log are industry dependent);
• Immediately Contact State and Local Health Departments If Worker Tests Positive for COVID-19 (and cooperate with contact tracing efforts, including notification of potential contacts, such as workers or visitors who had close contact with the individual, while maintaining confidentiality required by state and federal law and regulations);
• No Sick Employees On-Site (employees who are sick should stay home or return home, if they become ill at work); and
• Implement Mandatory Health Screening Assessment (e.g. questionnaire, temperature check) before employees begin work each day and for essential visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-19 case in past 14 days.

Although these mandatory requirements only cover Phase One businesses at this time, it is expected that these same requirements will apply to businesses re-opening in later phases.

DETAILED GUIDELINES

As the name suggests, the Detailed Guidelines provide extensive guidance for Phase One employers. The Detailed Guidelines are organized in three categories: (1) people (providing additional information and details as to physical distancing and workplace conduct, for example) ; (2) places (providing additional information and details as to protective equipment and cleaning, for example); and (3) processes (providing additional details as to daily health screening, testing and tracing, for example). Notably, the Detailed Guidelines introduce a concept of “Responsible Parties” who are required to ensure that all steps of the guidelines are adhered to and to specifically affirm that they have read and understand the obligations for re-opening. In addition, the Responsible Parties are required to notify the local health department and Department of Health if there is positive COVID test by a worker at the site. The Responsible Parties are defined in each industry in that industry’s Detailed Guidelines. For example, “the property owner of the curbside and in-store pickup retail business, or another party as may be designated by the property owner” are the Responsible Parties for Phase One pursuant to the Interim Guidance for Curbside and In-Store Pickup Retail Business Activities.

BUSINESS SAFETY TEMPLATE

Finally, for each industry, the state has issued a Business Safety Template that is to be completed and posted by the Responsible Parties in each Phase One industry. While using the template is not required, New York will require each re-opening business to develop and post a written safety plan outlining how it will prevent the spread of COVID-19.

New York State also issued new FAQs that are focused on the reopening plan. Importantly, the State responded to a concern of many companies regarding their ability to supply enough protective equipment for their employees. According to the FAQs, there will not be any exceptions to the requirement to provide protective equipment and cautions that “[y]our business can only reopen when you are able to fully supply adequate protective equipment and to help protect the health and safety of your workers.” The FAQs also make clear that if a business was already operating as an essential business, these new guidelines must now be followed. Essential retail businesses, for example, must now follow the retail guidelines that are being introduced to the Phase One retail curbside pick-up.

The New York requirements and guidance are rapidly changing. Phase Two, which includes professional services entities (e.g. traditional office settings), can begin to re-open as early as May 29, 2020 in the regions of New York that have been deemed safe to open. Although new industry-specific guidance for Phase Two businesses is expected to be issued, Phase Two businesses can start preparing now using the guidelines and template plans issued to date. Be sure to regularly check for updated guidance as businesses plan to re-open in New York.