New York State has continued to issue 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.”
Our previous LawFlash discussed the initial stage of the New York Forward reopening process. Since that LawFlash, New York State has allowed certain regions of the state to advance to the second phase in the reopening process, and issued additional reopening guidance, most notably for offices and in-store retail. Additionally, New York City entered Phase 1 reopening on June 8, 2020 and the city issued additional guidance. This in-depth guidance includes numerous required health and safety steps employers must implement as well as many suggested best practices. Morgan Lewis has prepared an off-the-shelf template health and safety plan that meets the New York State and New York City reopening requirements for clients to use when planning their respective reopening efforts. These plans must be posted on the worksite prior to reopening and New York City has already stated that inspectors will be visiting businesses to confirm compliance with these requirements.
Regional Reopening
As discussed in our previous LawFlash, New York Forward provides for the 10 economic regions of New York State to advance through reopening phases. After 14 days in the initial Phase One, a region is eligible to advance to Phase Two provided the region meets certain prescribed health and safety metrics. As of Monday, June 8, 2020, the following regions and counties therein have begun Phase Two of New York Forward:
Two regions remain in Phase One of New York Forward:
Importantly, regions do not automatically advance through New York Forward phases in two-week increments. Instead, reopening may be slowed or reverted depending on health and safety metrics that local officials must monitor during the reopening process.
Business Reopening
Many businesses can reopen in some capacity during Phase Two, subject to the requirements set forth below. Specifically, in addition to “essential businesses” (as defined by the Empire State Development Corporation) and businesses allowed to open during Phase One, the following business types and industries can open during Phase Two:
Note that the following business types remain closed during Phase Two:
Health and Safety Requirements for Offices and In-Store Retail
For each Phase One and Phase Two industry and business type, New York State has issued specific summary guidelines and lengthy detailed guidelines, as well as a template business safety plan. All covered businesses (including “essential businesses”) 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. As additional guidance is published, a business must operate in conformance to specific delineated requirements in the applicable detailed guidelines. For the avoidance of doubt, businesses should consult and review the applicable detailed guidelines, not the summary guidelines.
While some guidance is industry-specific, each guidance document sets forth certain minimum requirements with respect to people, places, and processes. The required aspects of the guidance applicable to offices and in-store retail, both of which can begin operations in Phase Two, are summarized below, with comments on what is specific to customer-facing retail locations. Note that the guidance also includes numerous encouraged steps included for business consideration.
“People” Requirements
First, businesses must take certain measures with respect to employees, customers, and visitors.
Physical Distancing
Businesses must ensure physical distancing by setting a 50% maximum area occupancy limitation as set forth by a certificate of occupancy. Additionally, occupancy of small workspaces, such as elevators, supply rooms, personal offices, and vehicles, must never exceed 50% unless it is designed for use by a single occupant. Employers must restrict access to areas that have reached maximum capacity. Importantly, retailers are instructed to only permit customers into a retail store if they wear a face covering (provided they are over the age of 2 and medically able to tolerate one). If a customer is denied entry because they are not wearing a face covering, the business should seek to provide alternative methods of pickup/delivery and ensure access to essential goods.
Whenever individuals come within six feet of another person, face coverings must be worn, including any time the employee interacts with a customer. Businesses are also advised to consider closing any common indoor or outdoor seating areas. To the extent shared spaces such as reception areas and cafeterias remain open, any seating area arrangements must be modified to ensure that individuals using the space are at least six feet apart in all directions. In any event, all personnel should maintain at least six feet of social distancing where possible. Additionally, the New York City reopening guidance advises employers to engage in the cooperative dialogue with employees who cannot medically tolerate face coverings. The New York City guidance also advises employers that they can discipline employees who can medically tolerate face coverings and refuse to wear them.
When social distancing is not feasible between workstations, businesses must provide and require the use of face coverings or physical barriers (e.g., plastic shielding walls, strip curtains, cubicle walls, or plexiglass). However, physical barriers must be put in place in accordance with OSHA guidelines and should not affect air flow, heating, cooling, or ventilation). Moreover, any shared workstations (which are discouraged, but not required to be eliminated) must be cleaned and disinfected between users.
Businesses are also directed to post signs (which can be created by the business) throughout the location which remind individuals to wear a face covering when within six feet of other individuals, properly store/discard PPE, adhere to physical distancing instructions, report symptoms of or exposure to COVID-19 and how to do so, and follow hand hygiene and cleaning and disinfection guidelines. Retailers must specifically post signs and distance markers denoting spaces of six feet apart in common areas/areas where lines frequently form.
Gatherings and Workplace Activity
Businesses must limit in-person gatherings (e.g., meetings, conferences, social events) to the greatest extent possible and use other methods such as video or teleconferencing whenever possible. When remote meetings are not possible, businesses should hold meetings in open, well-ventilated spaces and ensure that social distancing is maintained.
Businesses must also put social distancing practices in place in small areas, such as restrooms and breakrooms, and should develop signage and systems to restrict occupancy when social distancing cannot be maintained. Nonessential common areas (e.g., gyms, pools, game rooms) must remain closed.
Notwithstanding the above, businesses must take measures to reduce interpersonal contact and congregation and recommended methods to do so include adjusting workplace hours, reducing the in-office workforce, shifting days teams are in office, and implementing staggered arrival/departure times.
Movement and Commerce
All businesses must establish designated areas for pickups and deliveries, limiting contact to the extent possible.
Retailers, however, are subject to more specific requirements. They must: i) prepare a process to queue customers outside while maintaining appropriate physical distancing (e.g., visual cues and markers); ii) require that employees sanitize their hands before and after transferring a load of merchandise; iii) ensure fitting rooms have hand sanitizer and should clean fitting rooms after each use; and iv) close self-service bars/samples, cafes/food and beverage (except takeout and delivery), and water fountains.
“Place” Requirements
In addition to the above requirements, businesses must take other measures to prepare their physical spaces to open.
Face Coverings and PPE
Specifically, businesses must make acceptable face coverings available to employees who report to an office location at no cost to the employee and keep adequate supply on hand should an employee need a replacement or a visitor be in need. Employees must be permitted to use their own face covering if requested and if appropriate for the role performed by the employee. Businesses are directed to train employees on how to safety put on, take off, clean, and discard personal protective equipment. Businesses should also advise employees and visitors to wear face coverings in common areas, including elevators, lobbies, and when traveling around the workplace. Additional information on New York’s face covering requirements, which have been detailed in multiple executive orders, is available in our prior LawFlash on these orders and related guidance.
Hygiene, Cleaning, and Disinfestation
With respect to cleaning, businesses must conduct rigorous and ongoing regular cleaning and disinfection of the workplace and workplace materials and tools, with more frequent cleaning and disinfection for high-risk areas. They must also maintain logs that include the date, time, and scope of workplace cleaning and disinfection.
With respect to hygiene, businesses must provide appropriate cleaning/disinfection supplies for shared and frequently touched surfaces.
If an individual is confirmed to have COVID-19, a business must provide for cleaning and disinfection of any exposed areas if an individual is confirmed to have COVID-19. While employers do not need to close all operations, the CDC guidance is to close off/shut down areas used by the person.
“Process” Requirements
Finally, businesses must implement a series of required processes.
Screening and Testing
All businesses must implement daily health screening practices of all employees (but not customers), and where practicable other visitors (other than delivery personnel that are wearing appropriate face coverings). The screening may be performed remotely and, at a minimum, must include use of a questionnaire that determines whether in the past 14 days the employee has: (i) been in close contact with anyone who has tested positive/had symptoms of COVID-19; (ii) has tested positive themselves for having COVID-19; and/or (iii) has experienced any symptoms of COVID-19. The assigned COVID-19 safety officer for the location must review screening responses on a daily basis and maintain a record of this review. Note that retailers cannot require customers to complete a daily health screen (similar to what may be required for employees) or provide contact information for contact tracing, but retailers may encourage customers to do so. Any personnel performing screening activities, including temperature checks (which are not required), must be appropriately protected from exposure to potentially infectious employees.
In addition to prescreening employees, businesses must identify a site safety monitor responsible for compliance with the site safety plan and also identify a contact as the party for employees and visitors to inform if they experience any COVID-19 symptoms in the workplace. If an individual tests positive, the identified contact must notify the building owner/operator and initiate cleaning and disinfection process.
If an employee is symptomatic upon arrival at work or becomes sick during the day, the employee or visitor must be separated and sent home immediately. The guidelines also include information on how long an employee should be excluded from the workplace, which generally advise employers to only have individuals who have COVID-19 symptoms/test positive or are in close contact with someone who did to quarantine for 14 days. That said, there is an exception and an additional process to follow for employees deemed critical to the operation or safety of a workplace that lets them come to work provided they are closely monitored and asymptomatic.
Tracing and Tracking
Businesses must notify the local health department and New York State Department of Health immediately upon being informed of any positive COVID-19 test of an employee. They are also encouraged to cooperate with the local health department as required to trace all contacts in the workplace, including notifying the health department of all individuals who entered the site dating back 48 hours before the employee or visitor first experienced COVID-19 symptoms or tested positive, whichever is earlier.
Required Plans and Affirmations
In order to reopen, businesses must affirm that a representative has reviewed and understood the specific detailed guidelines and will implement them.
Importantly, businesses must post completed safety plans on site. The state has developed a template safety plan, but that plan is not required for use and employers can create their own.
The guidance also encourages employers to limit all nonessential travel, phase in reopening activities over time, encourage working from home, design one-way flows for people walking through the workspace, designate separate access and departure points if possible, and develop a communications plan, among other safety steps.
Businesses should be aware of the many required steps that they must take in order to meet the New York State and New York City guidelines for reopening. Further, to demonstrate that they are taking reasonable steps to protect worker health and safety, which also can help mitigate liability, employers should consider implementing as many of the recommended best practices listed in the guidance as feasible. Morgan Lewis has developed numerous resources and model materials to assist employers in reopening, including a general social distancing protocol and ready-to-implement New York-specific safety and health plan. Please contact the below personnel if you would like to review these materials or need any other assistance with reopening questions.
Return to Work Resources
We have developed many customizable resources to support employers’ efforts in safely returning to work. These include tracking of state and local orders on return to work requirements and essential/nonessential work; policy templates and guidelines for key topics such as social distancing procedures, temperature testing, and workplace arrangements for high-risk employees; and webinar training on safety measures for return to work. View the full list of return to work resources and consult our workplace reopening checklist.
For our clients, we have formed a multidisciplinary Coronavirus COVID-19 Task Force to help guide you through the broad scope of legal issues brought on by this public health challenge. Find resources on how to cope with the post-pandemic reality on our NOW. NORMAL. NEXT. page and our COVID-19 page to help keep you on top of developments as they unfold. If you would like to receive a daily digest of all new updates to the page, please subscribe now to receive our COVID-19 alerts, and download our biweekly COVID-19 Legal Issue Compendium.
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