New York Gov. Andrew Cuomo, New Jersey Gov. Phil Murphy, and Connecticut Gov. Ned Lamont jointly announced on May 3 a significant easing of the remaining capacity restrictions on business operations related to the COVID-19 pandemic.
Effective May 19, 2021, nearly all businesses in New York, New Jersey, and Connecticut will no longer be subject to capacity limitations based upon a percentage of maximum occupancy. However, businesses will still be required to limit capacity and occupancy to the extent necessary to continue maintaining six feet of social distancing.
New York updated its New York Forward landing page to note that “[b]usinesses will only be limited by the space available for patrons or parties of patrons to maintain the required social distance of 6 feet,” while New Jersey issued a press release providing that “[a]ny business, whether indoors or outdoors, that is subject to a percentage capacity limitation will instead be guided by the rule regarding six feet of distance between persons or groups of persons.”
New York and New Jersey additionally announced increases in gathering limits applicable to social and residential gatherings and to congregate in commercial and social events. (Note there are no additional announcements for Connecticut at this time.)
The announcement means that existing industry-based limitations applicable to offices, retail, food services, gyms and fitness centers, amusement and family entertainment, hair salons, offices, and other industries will no longer be in place. It does not specifically address whether vaccinated individuals will be subject to required social distancing. During the press conference at which he made the announcement, Gov. Cuomo suggested that there may be social distancing exemptions for vaccinated individuals, and also noted that the use of physical barriers would (as now) allow restaurants to set parties within six feet of each other. Gov. Cuomo also specifically proposed that businesses incentivize vaccination, for example by allocating more seats for vaccinated individuals while applying the six-foot rule (requiring six feet of social distancing between individuals/groups to non-vaccinated individuals. The example raises the prospect that the six-foot distancing rule may only apply as to non-vaccinated individuals, though formal guidance is forthcoming and the state has not amended its social distancing rules to reflect this proposal.
Further, as to New York, the announcement provides that “industry-specific requirements will remain in effect for a longer period of time, including state or local health authority event notification, health screening, contact information for tracing, enhanced air handling and building system standards, hand hygiene, and environmental cleaning and disinfection protocols” and that New York “will continue to provide additional guidance on these provisions as they apply to each industry.” The announcement suggests that the current New York Forward industry-specific guidelines and safety plan requirements will remain in effect in some capacity. As of today, New York has updated the New York Forward landing page to reflect the lifting of capacity limitations, but has not yet updated any of the industry-specific guideline documents to reflect the announcement.
Similarly, New Jersey has yet to announce any changes to its current requirement that office workers be allowed to work remotely when practicable. Connecticut previously announced that effective May 19, it was dropping all remaining business restrictions, contingent upon low rates of infections and increasing vaccination rates. The Connecticut guidance does not currently address mask-wearing requirements after May 19.
Finally, the announcement did not address indoor face covering requirements, which remain in place. In New York, face coverings must be worn when an individual comes within six feet of another person and when in common areas and shared workplaces, including elevators, lobbies, kitchen/break areas, and when traveling around the office. New York guidance does permit employees in the state to remove masks if a) they can maintain six feet of social distancing; or b) there are physical barriers (e.g., plastic shielding walls, in lieu of face coverings in areas where they would not affect air flow, heating, cooling, or ventilation). In New Jersey, employers must require employees to wear cloth or disposable face masks while on the premises, in accordance with CDC recommendations. Masks are not necessary when it is impracticable for an individual to wear a face mask (e.g., when the individual is eating or drinking), and employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office.
Based on this guidance, employers planning a return to or expansion of in-person work should be aware that while the capacity limits in place since last summer will no longer apply beginning on May 19, other restrictions remain in place. For example, based on the currently available guidance, which may be amended before or shortly after May 19, employers in New York still need to have a written safety plan, conduct daily screening assessments, conduct regular cleaning and keep logs of the time and scope of cleaning, require social distancing, and require employees to wear appropriate face coverings when in a common area or when interacting with others. Morgan Lewis has prepared a template reopening plan compliant with these requirements and will update it when new guidance is finalized.
States such as Florida, Pennsylvania, Delaware, and Colorado also have announced plans to roll back existing restrictions with varying approaches. Florida’s recent Executive Order No. 21-102, for instance, preempts and suspends all COVID-19-related local emergency restrictions on individuals and businesses. Importantly, although this order provides that counties and municipalities may not renew or enact an emergency order or ordinance, it does not prohibit businesses from imposing their own restrictions, including that employees must wear masks while in the workplace. Similarly, both Delaware and Pennsylvania announced plans on May 4 to withdraw COVID-19 restrictions. Pennsylvania Gov. Tom Wolf stated that on May 31, Pennsylvania will lift all COVID-19 restrictions except the requirement to wear masks in public. Pennsylvania’s mask order will then be lifted when 70% of adults are fully vaccinated.
Similarly, Delaware Gov. John Carney announced that Delaware will eliminate most capacity restrictions on May 21. Colorado has opted to lift its statewide restrictions in deference to more localized decisionmaking and, in certain instances, based on vaccination rates. Colorado’s face mask order, for example, has been amended to permit individuals to remove face coverings in public indoor spaces if 80% of those present show proof of vaccination. Notably, Colorado’s most recent public health order, issued on May 2, still provides that the state’s Department of Public Health & Environment “may require” counties that exceed certain hospital capacity metrics “to implement additional restrictions to mitigate disease transmission.” Even as these and other states ease restrictions, employers should use caution when modifying their current policies or reopening plans, in part because OSHA’s forthcoming emergency temporary standards may fill at least some of the resulting gaps.
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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:
August W. Heckman III
Sharon Perley Masling