*** Last Updated: July 17, 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.

Guidance is now available for phase one, phase two, phase three, and phase four businesses. Guidance is also available for essential retail businesses that were permitted to remain open during the shutdown, as well as child care centers, dentistry, professional sports training facilities, and other businesses. 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.

All of the ten regions have satisfied the seven metrics and are currently in phase four of the re-opening process. The one exception is New York City, which is currently in phase. The Governor announced that New York City is on track to enter phase four on Monday, July 20. However, phase four in New York City will likely not include certain indoor activities, such as the re-opening of malls and museums.

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 are 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.
• Higher Education Research.

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 an Executive Order issued by Governor Cuomo, the following businesses are 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 phase two guidance also includes information for commercial building management and outdoor and take-out/delivery food services.

The third phase includes guidance for food and personal care services. Phase four includes guidance for higher education, Pre-K to Grade 12 schools, low-risk arts and entertainment, media production, professional sports competitions with no fans, and malls.

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

Businesses Generally

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.

For many industries, 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. Depending on the industry, this guidance may require that employers, in addition to a number of other precautions:

• Limit occupancy in the workplace (e.g., 50% of the maximum occupancy as set by the certificate of occupancy for offices), ensure that social distancing is maintained among individuals at all times unless the safety of the core activity requires a shorter distance, and put in place practices for adequate social distancing in small areas (e.g., restrooms and breakrooms).
• Provide acceptable face coverings at no cost to employees, provide training on the proper use of face coverings, and require that they be used when social distancing cannot be maintained and in common areas;
• 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 practices before employees begin each workday and for essential visitors, which must be reviewed and documented, asking about: (1) COVID-19 symptoms; (2) positive COVID-tests; and (3) close contact with anyone who has tested positive or who has had symptoms of COVID-19 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 closing, cleaning, and disinfecting the workplace in the event of a positive case.

In addition to the screening questionnaire, employers may – but are not required to – implement temperature checks in accordance with EEOC and NYDOH guidelines. One exception to this rule is that Pre-K to Grade 12 schools (see below) are required to implement daily temperature checks. If temperature checks are conducted, employers are “prohibited from keeping records of employee health data (e.g. the specific temperature data of an individual), but are permitted to maintain records that confirm that individuals were screened and the results of such screening (e.g., pass/fail, cleared/not cleared).”

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. With the exception of Pre-K to Grade 12 schools (see below) and higher education institutions, plans need not be submitted to the State. Businesses deemed “essential” must also complete this online affirmation, develop a health and safety plan, and post the plan in a conspicuous location when guidance applicable to their business function is made available.

Special Requirements for In-Person Instruction at Pre-K to Grade 12 Schools

On July 13, 2020, the New York State Department of Health released Interim Guidance for In-Person Instruction at Pre-K to Grade 12 Schools. The guidance contains several unique aspects that are not included in the guidance for other industries.

First, schools must submit their re-opening plans to the State by July 31, 2020. Plans are presumed to be approved upon submission, unless otherwise notified. Schools, in addition to conspicuously posting the plan on site, are also required to post the plan on their website for faculty, staff, students, and parents to access.

Second, schools are required to conduct daily temperature checks of students, faculty, staff, contractors, visitors, and vendors. If an individual presents a temperature of greater than 100.0°F, the individual must be denied entry, or isolated and sent home. Schools must also require faculty and staff to complete a daily questionnaire and periodically use a questionnaire for students.

School re-opening plans must also address, in addition to a number of other items:

1. Reopening of school facilities for in person-instruction, including capacity and social distancing requirements, policies regarding extracurricular activities, processes for food services, and protocols for school transportation consistent with public transit guidance;
2. Monitoring health conditions, including processes for the provision or referral of diagnostic testing for students and staff and metrics that will serve as early warning signs that COVID-19 cases may be increasing beyond acceptable levels;
3. Containment of potential transmission of COVID-19, including protocols for safely caring for students and staff if they develop symptoms, protocols for the isolation and pick-up of sick students, and plans to support local health departments in contact tracing; and
4. Closure of school facilities and in-person instruction, if necessitated by widespread virus transmission, including closure triggers, plans for decreasing operations, and a communication plan.

The State has not yet announced a re-opening date for Pre-K to Grade 12 schools. According to the guidance, the State will decide on a date in early August. Governor Cuomo announced during his July 13 press conference that schools in regions in phase four can re-open if daily infection rates remain below five percent using a 14-day average. However, schools will be required to close if regional infection rates rise over nine percent after August 1.

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.