On June 8, 2021, the New York State Department of Health released updated interim guidance for office-based workplaces that removes significant prior restrictions. This new guidance comes on the heels of Governor Andrew Cuomo’s recent announcement that once 70% of adult New Yorkers have received at least the first dose of the COVID-19 vaccine, almost all applicable guidance will become optional, except that unvaccinated individuals still need to wear face coverings and maintain social distancing. According to Governor Cuomo, New York is expected to hit the 70% threshold during the week of June 14, if not earlier.
The updated Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency (Office Guidelines) represents the most substantive overhaul of New York’s guidance to office-based workplaces since it was first implemented last year, including updates to prior guidance on physical distancing, face coverings, workplace activity, reopening processes, and screening/testing. The most significant changes are outlined below.
Screening and Testing
Perhaps most significantly, the Office Guidelines no longer mandate a daily health screening questionnaire for employees reporting to work at an office. While employers are still required to implement health screenings, they may meet the screening requirement using signage at points of entry, by email/website, by telephone, or by electronic survey.
A screening sign or procedure should state that an employee should not enter the office if they (1) are currently or have recently (within the last 48 hours) experienced symptoms of COVID-19; (2) have had close contact (or proximate contact) in the last 10 days with any person confirmed by diagnostic test, or suspected based on symptoms, to have COVID-19; or (3) have tested positive for COVID-19 in the last 10 days.
Notably, the Office Guidelines provide that individuals need not be screened for close contacts with COVID-19 if the individuals being screened are fully vaccinated or if they have fully recovered from a lab-confirmed COVID-19 case within the last three months. Such individuals instead should monitor for COVID-19 symptoms for 14 days following an exposure.
Physical Distancing
As discussed in previous LawFlashes (Multiple States, Including the New York Tristate Area, Announce Significant Rollback of COVID-19 Capacity Limit Restrictions and New York to Implement CDC Guidance on Indoor Mask Use and Social Distancing), New York State recently eliminated most capacity restrictions and adopted the Centers for Disease Control and Prevention (CDC) guidance providing that fully vaccinated individuals do not need to wear a face covering or socially distance in most settings.
The updated Office Guidelines incorporate New York’s adoption of the CDC guidance, providing that businesses may allow for fully vaccinated employees to return to offices at full capacity without requiring such employees to wear a face covering or socially distance. Businesses may choose to adopt the CDC guidance for the entire establishment or a separate, designated part of the establishment. Businesses still have the option to require face coverings and six feet of social distancing for employees regardless of vaccination status, if they choose to do so. While New York State does not require that businesses obtain proof of vaccination, the Office Guidelines provide that businesses may obtain proof of full vaccination status via paper or digital form, or the state's Excelsior Pass.
Businesses are still directed to require unvaccinated employees to wear face coverings and maintain six feet of social distancing. Businesses may also use their discretion in determining how they wish to apply guidelines for vaccinated individuals and unvaccinated individuals, or those whose vaccination status is unknown. Such steps may include posting signage asking unvaccinated individuals to socially distance and continue to wear face coverings; designating separate elevators for vaccinated and unvaccinated individuals; and setting maximum space capacity for unvaccinated individuals to the extent needed to maintain the required social distance. Similarly, in other small spaces (e.g., storage or supply closets), businesses should ensure indoor occupancy does not exceed the capacity required to maintain social distance, if necessary, as set forth by the Office Guidelines, unless it is designed for use by a single occupant or all individuals are fully vaccinated.
In areas where vaccination status is unclear or in unvaccinated sections of an establishment, businesses must ensure that a distance of at least six feet is maintained between all employees, barring a core business activity requiring a shorter distance.
The Office Guidelines also remove several previous recommendations for physical distancing. For example, businesses are no longer encouraged or required to close or adjust common seating areas, and “strict clean desk policies” are no longer recommended. Physical barriers are no longer required, but if used should be put in place in accordance with Occupational Safety and Health Administration (OSHA) guidelines.
Workplace Activity
Importantly, the Office Guidelines no longer encourage allowing employees to work from home, though employers may of course continue to permit employees to do so. The Office Guidelines also provide that formerly required measures to reduce interpersonal contact and congregation are now just recommendations. Such measures could include adjusting hours, reducing an in-office workforce, shifting an office’s design, and staggering tasks.
Phased Reopening
The Office Guidelines no longer encourage businesses to engage in either remote work or phased reopening activities.
Given the Office Guidelines, New York employers can permit fully vaccinated individuals to return at full capacity without social distancing and without wearing face coverings while at work. However, the Office Guidelines continue to require multiple reopening measures. For example, businesses must still create and post mandatory site safety plans and designate monitors to ensure compliance with those plans, maintain logs with the time and scope of all cleanings and disinfection, report positive cases and cooperate in contact tracing efforts by local health departments, prohibit shared self-serve meals and beverages among employees, and attest to having reviewed and understood the Office Guidelines before reopening.
Because the Office Guidelines distinguish between vaccinated and unvaccinated employees, employers should consider retaining documentation (or at least an affirmation) of an employee’s vaccination status, while being mindful that such records should be treated as confidential information and maintained in a secure location separate and apart from the employee’s personnel files (similar to how employers were required to treat daily attestations). If businesses choose not to maintain proof of vaccination, they should consider how to comply with the new guidance and clearly communicate in advance with all individuals who will enter their businesses—whether via signage at points of entry, email, or website posting—regarding their approach to vaccinations.
Finally, as the vaccination rate quickly approaches the 70% threshold at which Governor Cuomo stated most COVID-19 requirements will instead become recommendations, employers should closely monitor for forthcoming updates regarding changes to the remaining requirements applicable for their industries.
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.
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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
Douglas T. Schwarz
Kimberley E. Lunetta
Leni D. Battaglia
Melissa D. Hill