***Updated May 5, 2020 to account for new information released by the Governor’s Office.***

In his daily press conference on April 26, 2020, New York Governor Andrew Cuomo announced a plan to re-open the state in phases on a regional basis. Under the plan, businesses will re-open on a business-by-business level within each region, with priority given to businesses that are: (1) “more essential,” and (2) present a lower risk of infection to employees and customers. The Governor’s Office has since provided additional detail about what would be required of businesses and regions in order for re-opening to begin. Below is a summary of what employers should know about the Governor’s plan.

The current plan includes four phases, with a two-week monitoring period between each phase to ensure that hospitalization and infection rates remain stable. Phase one will include construction, manufacturing, wholesale supply chain, and select retail using curbside pickup only. In phase two, in-person professional services, finance, insurance, retail, administrative support, real estate, and rental leasing functions will resume. Phase three includes restaurants, food service, hotels, and accommodations. In the fourth phase, in-person arts, entertainment, recreation, and education functions will resume.

Rather than offering a specific timeline, the Governor announced criteria that regions must satisfy in order to proceed with re-opening. Under the plan, a region must:

  1. Experience a 14-day decline in hospitalizations or have fewer than 15 new hospitalizations (on a three-day rolling average);
  2. Experience a 14-day decline in hospital deaths or have fewer than five new deaths (on a three-day rolling average);
  3. Have fewer than two new hospitalizations per 100,000 presidents (on a three-day rolling average);
  4. Maintain 30% availability of hospital beds;
  5. Maintain 30% availability of ICU beds;
  6. Implement a testing regimen with the capacity to conduct 30 diagnostic tests for every 1,000 residents per month; and
  7. Develop a system to trace individuals with confirmed COVID-19 and notify those with whom the infected individual had close contact that includes at least 30 contact tracers for every 100,000 people (and additional tracers based on the projected number of cases in the region).

Regions must also institute regional control rooms, isolation facilities for those who test positive, and protections for essential workers. The Governor’s plan also calls on regions to coordinate the re-opening of schools, transportation systems, as well as testing and tracing, with surrounding regions, which in the Governor’s plan include: the Capital Region, Central New York, Finger Lakes, Mid-Hudson Valley, Mohawk Valley, New York City, North Country, Long Island, Southern Tier, and Western New York.

Notably, the Governor indicated that, before re-opening, each business and industry must have a plan in place to protect employees and consumers, make the workplace safer, and implement processes that lower risk of infection. The Governor’s office has not yet provided guidance regarding the specifics of these plans, nor has it announced whether employers will be required to submit these plans to the state, and if so, what review and approval process will ensue. However, the Governor did indicate that an advisory board of business leaders has been created to formulate plans, and that businesses will be required to:

  1. Adjust workplace hours and shift design as necessary to reduce density in the workplace;
  2. Enact social distancing protocols;
  3. Restrict non-essential travel for employees;
  4. Require all employees and customers to wear masks if in frequent contact with others;
  5. Implement strict cleaning and sanitation standards;
  6. Enact a continuous health screening process for individuals to enter the workplace;
  7. Continue tracing, tracking, and reporting of cases; and
  8. Develop liability processes.

The Governor’s plan includes one caveat – attractions and businesses that draw a large number of visitors from outside the local area will remain closed during this phased re-opening. The Governor has not indicated which businesses would be affected by this restriction or defined what will be considered a “large number of visitors.”

So when do employers need to start preparing? As soon as possible. Non-essential businesses in the State have been closed since March 22, and the Governor’s current Executive Order is set to expire on May 15. After this date, regions may begin to re-open once they satisfy the above criteria, the progress of which is being tracked by the State. Our team is closely monitoring these orders and the Governor’s re-opening plan, and will continue to provide updates as they become available.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.

Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.