New York Begins Partial Reopening Plan, Offers Industry-Specific Guidance

May 19, 2020

New York State began on May 15 to implement the state’s phased, regional plan for reopening businesses following the statewide closure of all nonessential businesses due to the coronavirus (COVID-19) public health emergency, a process known as “New York Forward.” Pursuant to New York Forward, certain industries in qualifying regions of New York can begin in-person operations, provided they affirm compliance with industry-specific health and safety guidance promulgated by the state and develop and post a compliant safety plan. This LawFlash discusses the nature and scope of the New York Forward reopening process, and key provisions from health and safety guidance issued to date.

Phased Reopening[1] by Region and Industry

Regional Reopening

As a threshold matter, New York Forward provides for the 10 economic regions of New York State (as defined by the Empire State Development Corporation) to progress on individual timelines through phased reopening depending on whether each region satisfies seven metrics established “based on guidance from the Center for Disease Control and Prevention, the World Health Organization, the US Department of State, and other public health experts.” In order to even begin the New York Forward reopening process, a region must satisfy all seven metrics, which look to COVID-19 hospitalizations and deaths, as well as hospital and ICU bed capacity, diagnostic testing capacity, and contact testing capacity. Progress is monitored on a dashboard updated daily by the state. As of Tuesday, May 19, 2020, the following regions and counties therein have begun Phase One of New York Forward based upon having satisfied all seven metrics:

  • Capital Region (beginning Phase One on May 20, 2020): Albany, Columbia, Greene, Saratoga, Schenectady, Rensselaer, Warren, and Washington counties
  • Central New York: Cayuga, Cortland, Madison, Onondaga, and Oswego counties
  • Finger Lakes: Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, and Yates counties
  • Mohawk Valley: Fulton, Herkimer, Montgomery, Oneida, Otsego, and Schoharie counties
  • North Country: Clinton, Essex, Franklin, Hamilton, Jefferson, Lewis, and St. Lawrence counties
  • Southern Tier: Broome, Chemung, Chenango, Delaware, Schuyler, Steuben, Tioga, and Tompkins counties
  • Western New York: Allegany, Cattaraugus, Chautauqua, Erie, and Niagara counties

The remaining three regions (New York City, Long Island, and the Mid-Hudson), consisting of Metropolitan New York City, will not begin phased reopening until they satisfy the seven metrics. Until then, only “essential businesses” as defined by the Empire State Development Corporation can operate in-person.

Finally, it is important to note that regions may slow or revert reopening measures if the metrics demonstrate increased spread of COVID-19 after the reopening process begins.

Industry Reopening

In regions permitted to begin the New York Forward reopening process, reopening will occur in phases, with a minimum of two weeks between each phase. Regions will be permitted to advance from phase to phase based upon hitting additional benchmarks, although New York State has not yet announced what specific benchmarks regions will be required to satisfy before advancing from the first phase to the second phase.

The following industries can reopen during the first phase of New York Forward:

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

Other businesses cannot begin to reopen even where the New York Forward process has begun unless they are “essential businesses” as defined by the Empire State Development Corporation. Note that according to New York State guidance, even “essential businesses” must satisfy the industry-specific guidance described below to the extent such guidance is promulgated.

The second phase of New York Forward will include Professional Services, Retail (in-person), Administrative Support, and Real Estate/Rental & Leasing. We expect additional guidance on these industries in the next few weeks.

Industry-Specific Health and Safety Requirements

As of Tuesday, May 19, 2020, New York State has published industry-specific summary guidelines and detailed guidelines for each of the industries allowed to open during the first phase of New York Forward, as well as a template business safety plan. Before a business can reopen pursuant to New York Forward, a representative of the business must: (1) review the detailed guidance for the applicable industry; (2) develop and post a compliant safety plan for the business; and (3) affirm the business’s obligation to operate in accordance with the applicable guidance.

While the summary guidelines can be helpful, the detailed guidelines set forth the binding minimum standards for the industry. Although the requirements differ somewhat between industries, the following additional requirements apply generally across industries. The guidance is very specific, and businesses should review it in full and implement appropriate measures before re-opening.

First, businesses must facilitate social distancing and limit in-person interactions. For any work occurring indoors, the workforce presence must be limited to 50% of the maximum occupancy as set by a certificate of occupancy for the applicable area, excluding supervisors. If a business requires more employees to safely operate “core functions” the business may do so, provided it uses additional mitigation strategies. Businesses must also ensure that a distance of at least six feet is maintained among workers at all times, unless safety of “core functions” requires a shorter distance. To the extent employees come within six feet of other individuals, they must wear face coverings such as cloth-based face coverings and/or disposable masks. For workplace activities “that typically require a higher degree of protection due to the nature of the work,” N95 respirators or other personal protective equipment are required. In order to meet these requirements, the guidance provides that, for example:

  • Businesses should either: (1) modify and/or reduce workstations and seating areas such that employees are six feet apart while working; (2) provide and require the use of face coverings; or (3) enact physical barriers (such as plastic shielding, plexiglass or strip curtains).
  • Businesses should prohibit the use of “tightly confined spaces” such as elevators and vehicles by more than one individual at a time, unless individuals are wearing face coverings. If individuals are wearing face coverings, occupancy should never exceed 50% of the maximum capacity of the space or vehicle. To reduce congestion, businesses should limit density in such areas, including by enabling the use of stairs.
  • Businesses should implement measures to reduce bi-directional foot traffic, such as by using tape, signs, and distance markers.
  • Businesses must also: (i) limit in-person gatherings wherever possible, such as by staggering work schedules; (ii) take measures to reduce interpersonal contact, such as by segmenting and batching work activities to limit contact by workers; and (iii) limit movement and commerce, such as by designating separate ingress and egress points and restricting access to essential visitors.

Second, businesses must meet certain safety requirements. Most notably, businesses must procure, fashion, or otherwise obtain acceptable face coverings and provide such coverings to their employees while at work at no cost to the employee. Businesses must also maintain hand hygiene stations for handwashing and sanitizer, and conduct regular cleanings and disinfections. Businesses must also maintain cleaning logs that include the date, time, and scope of the cleaning. Businesses should also develop a “communications plan” for employees, visitors, and customers, including “applicable instructions, training, signage, and a consistent means to provide employees with information.”

Third, businesses must implement daily mandatory health screening practices for employees and ensure the individuals conducting the screening are appropriately trained. Although employers have discretion in the type of screening they conduct (temperature checks are referenced as an acceptable, but not required method), screening should be completed remotely before an employee reports to work, to the extent possible. At a minimum, employees and visitors must complete a questionnaire orally or in writing to determine whether the employee or visitor has tested positive for or exhibited symptoms of COVID-19 within the preceding 14 days; or knowingly been in close contact with anyone who has tested positive for COVID-19 or who has exhibited symptoms of COVID-19 within the preceding 14 days.

To the extent possible, businesses should also maintain a log of every person who may have had close contact with anyone entering a work area and are directed to notify the local health department and the New York State Department of Health about the suspected case. Businesses must then cooperate with any health official contact tracing efforts, which can include sharing information on which employees and visitors entered the workplace dating back to 48 hours before the employee experiencing COVID-19 symptoms or tested positive, whichever is earlier.

Key Takeaways for Businesses

Businesses looking to reopen or expand their workplace anywhere in New York State need to be aware of the state’s detailed guidelines and requirements. Businesses should be especially mindful of the industry-specific guidance and should ensure that they have taken effective measures to ensure their workplaces are safe for employees and guests alike. Common steps New York employers should implement prior to fully reopening are establishing a broad social distancing plan, creating a workplace safety plan, developing communications to employees about these plans, implementing COVID-19 symptom screening, training screeners and managers on responsible and consistent implementation of these plans, updating cleaning protocols, taking steps to reduce the number of people in the workplace, and developing protocol for when an employee is infected, including a contact tracing protocol and script.

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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

New York
Leni Battaglia
Melissa Hill
Kimberley Lunetta
Douglas Schwarz

[1] This article uses the generic term “reopening” to mean both reopening of closed workplaces as well as the expansion/worker return for workplaces that have continued to operate during the COVID-19 pandemic.