***Last Updated: June 1, 2020***

New York State has issued detailed guidance on Governor Cuomo’s “New York Forward” Plan, under which the State will re-open in four phases on a regional basis. The guidance includes additional information regarding: (1) when regions will be permitted to begin re-opening; (2) which businesses are included in each of the four phases; (3) what is required of businesses in order to re-open; and (4) how compliance will be enforced.

As of Friday, May 29, guidance is available for phase two businesses, which now include “all office-based jobs.” Guidance is also available for essential businesses that were permitted to remain open during the shutdown. Below is a summary of what employers need to know about the re-opening guidance.

When Are Regions Able to Re-Open?

Regions were permitted to begin a phased re-opening on May 15, provided that they satisfied the seven metrics explained in more detail in our previous post. According to the Plan, these criteria ensure that re-opening will only proceed in a region if:

  • The infection rate is sufficiently low;
  • The health care system has the capacity to absorb a potential resurgence in new cases;
  • Diagnostic testing capacity is sufficiently high to detect and isolate new cases; and
  • Robust contact-tracing capacity is in place to help prevent the spread of the virus.

The State has developed a Regional Monitoring Dashboard to track the progress of each region. As of June 1, every region – with the exception of New York City – has satisfied the seven metrics, and has entered the first phase of re-opening. The first five regions to initially re-open – the Finger Lakes, Central New York, the Southern Tier, the North Country and Mohawk Valley – were permitted to enter the second phase of re-opening on May 29. The Governor has also stated that Western New York and the Capital Region will enter phase two during the week of June 1.

As of June 1, New York City has satisfied five of the seven metrics. According to an Executive Order issued by the Governor, New York City will remain subject to the workforce reduction order (also known as “New York On PAUSE”) until the region satisfies the metrics (currently on track for June 8) or until the PAUSE Order is lifted by a future Executive Order.

Which Businesses Are Included in Each Phase?

Within each region, non-essential businesses will be permitted to re-open in four phases with at least two-weeks between phases to monitor hospitalization and infection rates. If these indicators become problematic, a regional oversight institution will have the authority to slow down or stop the re-reopening process. Businesses that typically draw a large number of visitors from outside the region are required to remain closed throughout the re-opening.

Notably, the re-opening guidance only applies to non-essential businesses. Businesses already deemed essential by the Empire State Development (ESD) Corporation’s guidance – and those that support essential businesses – have remained open during the shutdown and will continue to remain open during the phased re-opening. However, all businesses (including essential businesses) will be required to implement health and safety plans, as discussed in more detail below.

Phase One: Construction, Agriculture, Retail, Manufacturing, and Wholesale Trade

During phase one, businesses considered to have a greater economic impact and a lower risk of infection will be permitted to re-open. According to the reopening guidance, this includes the following businesses:

  • Construction – including building equipment contractors; building finishing contractors; foundation, structure, and building exterior contractors; highway, street and bridge construction; land subdivision; nonresidential building construction; residential building construction; and utility system construction.
  • Agriculture, Forestry, Fishing & Hunting – including other animal production; other crop production; support activities for animal production; support activities for crop production; and support activities for forestry.
  • Retail for Delivery and Curbside Pick-Up Only for the Following Businesses – clothing stores; direct selling establishments; electronics and appliance stores; electronic shopping and mail-order houses; furniture and home furnishing stores; florists; general merchandise stores; health and personal care stores; jewelry, luggage, and leather goods stores; lawn and garden equipment and supplies stores; office supplies, stationery, and gift stores; used merchandise stores; shoe stores; sporting goods, hobby, musical instrument and book stores; and other miscellaneous retailers.
  • Manufacturing – including the manufacturing of apparel, computer products, electronic products, electric lighting equipment, fabricated metal products, furniture and related products, leather and allied products, machinery, nonmetallic mineral products, paper, petroleum and coal products, plastics and rubber products, and wood products; printing and related support activities; textile and textile product mills; and other miscellaneous manufacturing.
  • Wholesale Trade – including wholesale electronic markets and agents and brokers; and merchant wholesalers of: apparel, piece goods, and notions; chemical and allied products; furniture and home furnishing; household appliances and electrical and electronic goods; machinery, equipment, and supplies; metals and minerals (except petroleum); paper and paper products; professional and commercial equipment and supplies; miscellaneous durable goods; and miscellaneous nondurable goods.

Phases Two, Three and Four: Businesses with Greater Risk and/or Less Economic Impact

If infection and hospitalization rates remain stable during phase one, regions will proceed to subsequent phases in which businesses considered to have less economic impact and a higher risk of infection will re-open. According to a new Executive Order, the following businesses will be able to resume in-person operations during phase two:

  • Professional services, administrative support, and information technology.
  • Real estate services, building and property management, leasing, rental, and sales services.
  • Retail in-store shopping, rental, repair, and cleaning.
  • Barbershops and hair salon (limited services).
  • Motor vehicle leasing, rental, and sales.

The third phase includes restaurants, food services, and personal care services. In the fourth phase, in-person arts, entertainment, recreation, and education functions will resume. Additional guidance as to which businesses fall into each of these categories will likely continue to be issued as re-opening proceeds.

What is Required of Businesses in Order to Re-Open?

Every business must develop a health and safety plan to protect employees and consumers, make the physical workspace safer, and implement processes that lower risk of infection. These requirements apply to all businesses, including essential businesses that remained open during the shutdown. In developing their health and safety plans, employers must consider three main factors:

  1. Protections for Employees and Customers – including adjustments to workplace hours and shift design as necessary to reduce workplace density, enacting social distancing protocols, and restricting non-essential travel for employees.
  2. Changes to the Physical Workspace – including requiring all employees and customers to wear masks or face coverings if in frequent close contact with others and implementing strict cleaning and sanitation protocols.
  3. Processes That Meet Our Changing Public Health Obligations – including screening individuals when they enter the workplace or reporting confirmed positive cases to customers.

For each industry in phase one and phase two, the State has released: (1) a summary of which safety practices are mandatory and which practices are recommended, (2) a detailed interim guidance document, and (3) a business safety plan template. The State has issued a “Reopening Lookup Tool” that employers can use to determine whether or not their business is permitted to re-open and identify the guidance that applies to their business. According to this guidance, employers that reopen must, in addition to a number of other precautions:

  • Post social distancing markers that denote six feet of spacing in commonly used areas;
  • Provide acceptable face coverings at no cost to employees and maintain an adequate supply of replacements;
  • Conduct regular cleaning and disinfecting at least after every shift, daily, or more frequently as needed; and more frequent cleaning and disinfecting of shared objects, surfaces, and high-transit areas;
  • Post signage throughout the worksite to remind personnel to adhere to proper hygiene and cleaning practices, social distancing rules, and appropriate use of personal protective equipment (PPE);
  • Implement mandatory health screening assessments before employees begin each workday and for essential visitors, which must be reviewed and documented every day, asking about: (1) COVID-19 symptoms; (2) positive COVID-tests; and (3) close contact with a confirmed or suspected COVID-19 case within the past 14 days;
  • If an employee tests positive for COVID-19, immediately notify state and local health departments and cooperate with contact tracing efforts, while maintaining confidentiality required by applicable state and federal law and regulations; and
  • Implement a plan for cleaning, disinfecting, and contact tracing in the event of a positive case.

After developing a health and safety plan, employers must post the plan in a conspicuous place on-site and affirm via an online form that they have read and understand their obligation to operate in accordance with the State’s guidance. Businesses deemed “essential” must also complete this online affirmation, develop a health and safety plan, and post the plan in a conspicuous location now that guidance applicable to essential businesses is available.

How Will Compliance Be Enforced?

Employers should not delay in making preparations regarding their safety plans, particularly with respect to procuring PPE and other materials that are necessary to operate safely. According to an FAQ issued by the ESD Corporation, businesses that cannot fully comply with the guidance will not be issued waivers because of the ongoing health and safety concern. Moreover, the guidance explicitly states that “if your business cannot procure the required protective equipment, then your business cannot operate safely.” Businesses that are having trouble complying because they cannot procure an adequate supply of PPE are encouraged to contact the county Office of Emergency Management.

The Governor’s website is currently inviting individuals to submit complaints against businesses that do not comply with the guidelines through an online form. These complaints will be reviewed by a team of investigators from multiple state agencies and then referred to local authorities, which will then be responsible for responding to the alleged violations. For continued or egregious non-compliance, local law enforcement will be empowered to enforce the guidelines. Compliance with the re-opening guidelines will also be monitored by an oversight institution to be appointed within each region.

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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.