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New York State Releases Reopening Guidance for Phase 2 Businesses

New York State has issued industry-specific interim guidance for “Phase 2” businesses, which includes a number of “minimum requirements” certain businesses must meet before reopening their workplaces in light of COVID-19.

The new Phase 2 guidance provides specific guidelines relating to office-based jobs (excluding medical offices); real estate services; select in-store retail; commercial building management; retail rental, repair and cleaning services; and vehicle sales, leases and rentals.  Importantly, this new guidance applies to “non-essential” businesses in these industries where regions are permitted to reopen, as well as “essential” businesses throughout the state that were previously permitted to remain open.  As various regions begin progressing through the reopening phases under the New York Forward initiative, businesses should become thoroughly familiar with these new obligations and begin taking steps toward achieving compliance.

Background

Starting March 20, 2020, as a result of Governor Cuomo’s “New York PAUSE” executive orders, non-essential businesses and services in New York State were ordered to close all in-office personnel functions.  Subsequent guidance from the Empire State Development Corporation (“ESD”) established a list of “essential” businesses and services that were not subject to the in-person restrictions, though these businesses and services were still required to comply with New York State Department of Health (“DOH”) directives to maintain healthy and safe work environments.  The ESD guidance allows non-essential businesses and workers to continue working on-site where they are providing services to essential businesses.  We summarized the executive order and ESD’s guidance here.

In late April, Governor Cuomo announced the “New York Forward” initiative, which includes a four-part phased approach to reopen New York industries and businesses by region based upon specific COVID-19 health metrics.  The state has indicated that at least two weeks (14 days) must pass between the start of Phase 1 before progressing to Phase 2 and so forth.  We detail the current reopening phases outlined by the state below:

  • Phase 1 allows construction, agricultural, landscaping, manufacturing, and wholesale supply chain businesses to reopen, as well as many retailers providing curbside or in-store pickup.  New York issued guidance for these Phase 1 industries here.
  • Phase 2 allows a wide range of businesses to reopen, including most office-based businesses, administrative services, commercial building management, real estate services, and repair and cleaning services.  New York issued guidance for these Phase 2 industries here.
  • Phase 3 allows restaurants and food services to reopen. The state has not issued guidance for Phase 3 businesses to date.
  • Phase 4 allows for the reopening of arts, education, entertainment, and recreational entities.  The state also has not issued guidance for Phase 4 businesses to date.

Starting May 15th, several Upstate New York regions began Phase 1 reopening protocols.  By May 29th, every region of New York except the five boroughs of New York City had started Phase 1 of the reopening scheme.  Certain Upstate New York regions have also progressed to Phase 2 as of May 29th.  Although New York City has not yet begun Phase 1, authorities have announced that they expect Phase 1 reopening to occur on June 8th.

All New York businesses – regardless of industry or “essential” status – will need to prepare immediately to meet these strenuous requirements before they are allowed to reopen.

New Compliance Requirements for All Businesses

Each business in New York is categorized under a specific “industry” that has its own particularized guidance and requirements.  If a business is unsure of the listed industry in which it fits, the state has provided a “business reopening lookup tool” to help businesses identify their industry and obligations.  We highlight and link to several major industries’ guidance documents below:

The only remaining industries for which there is currently no guidance (and which will reopen later under Phases 3 and 4) are “restaurants/food services,” “education,” and “arts/entertainment/recreation.”

In order for each business to reopen, it must complete the following basic compliance steps:

  1. Read its industry’s particularized reopening guidelines and have its owner or agent complete an online form stating that the business will reopen and operate in accordance with state guidelines; and
  2. Create a written business reopening safety plan that must be conspicuously posted in the workplace and retained onsite in case of state inspection.  Businesses can use this template to create a safety plan or can create their own safety plan based upon the guidelines’ requirements.

It is incumbent upon non-essential New York businesses to comply with these various requirements before reopening operations and to continue adhering to these compliance measures once worksite operations resume.  Previously denoted “essential” businesses must also comply with these requirements as soon as possible.

Many of the New York guidance documents pertaining to different industries have overlapping requirements (e.g. the use of protective gear, establishing thorough cleaning protocols, screening employees for COVID-19 symptoms).  But employers must review their industry-specific guidance to ensure they are in compliance with the unique requirements applicable to their industry.

Specific Reopening Requirements for Office-Based Businesses

As a large number of New York businesses will fall under the umbrella industry of “offices” or “office-based work,” we are providing an overview of many of the office-specific requirements established by the new guidance.  While some of these issues have been covered in other recommended guidance from agencies such as the CDC and OSHA, New York is now requiring many of these measures for reopening businesses.  It is also worth noting that the guidance covers more than just employees; businesses now have specific safety and health-related obligations pertaining to employees, vendors or contractors, and even short-term visitors.

The state’s Interim Guidance for Office-Based Work is a comprehensive 12-page document that specifies numerous requirements (“must”), guidance (“should”), and suggestions (“may”) for businesses relating to COVID-19 risk mitigation.  The state has also issued a list of summary guidelines that denotes both “mandatory” and “recommended” measures.  

We focus on the mandatory measures below, but employers should also review the recommended best practices:

Physical Distancing:

  • Limit the total number of occupants at any given time to no more than 50% of the maximum occupancy for a particular area (based upon certificates of occupancy)
  • Require that individuals maintain a 6 foot distance from others at all times
  • Require workers and visitors to wear face coverings (i.e. facemasks) when within 6 feet of another person
  • Limit the use of tightly confided spaces (e.g. elevators or vehicles) to one individual at a time (unless individuals are wearing face coverings), and limit occupancy of confined areas to no more than 50% capacity
  • Post instructive signage through offices denoting 6 foot of spacing
  • Limit in-person gatherings as much as possible and use teleconferencing or videoconferencing wherever possible
  • Clean shared workstations between users
  • Reduce interpersonal contact and congregation through various methods (for example, options include limiting in-person presence to “necessary” staff, shifting workplace hours, or staggering arrival and departure times)
  • Close non-essential common areas such as gyms or recreation rooms

Protective Equipment:

  • Provide workers with protective equipment such as face coverings (which was already a requirement under a previous executive order) and ensure that face coverings are cleaned or replaced regularly
  • Train employees on the use of protective equipment
  • Advise workers and visitors to wear face coverings when using common areas and traveling around the office
  • Limit the sharing of equipment (e.g. laptops, writing utensils) and the touching of shared surfaces (e.g. doorknobs and elevators buttons)
  • Require workers to use gloves when touching shared surfaces or to wash or sanitize their hands prior to and after contact

Hygiene & Cleaning:

  • Clean and disinfect all office areas at least daily, or more frequently as needed in high risk areas (e.g. restrooms)
  • Adhere to cleaning guidance from the CDC and DOH
  • Maintain logs of cleanings and disinfections
  • Use approved, environmentally sound cleaning products that are effective against COVID-19
  • Install hygiene stations in the workplace (e.g. hand sanitizing stations)
  • Provide employees with appropriate cleaning supplies for their personal spaces
  • Prohibit shared food and beverages
  • Ensure equipment is regularly cleaned using shared disinfectants

Communication:

  • Affirm that the business understands and will implement the state-issued guidelines
  • Maintain a continuous log of every person (including visitors) who has been present at the worksite and may have close contact with others
  • Cooperate with state and local health departments and building management if an employee or visitor tests positive, including affirmatively notifying state and local health departments and participating in contact tracing efforts to identify workers, visitors, or customers who may have been in contact with the infected person (while also maintaining confidentiality pursuant to applicable regulations)
  • Develop a communications plan for employees and visitors
  • Training employees on applicable instructions
  • Post safety plans and signs reminding individuals to adhere to these rules
  • Provide building managers with a list of expected visitors

Screening and Testing:

  • Mandate that employees who are sick stay home (or return home) if ill
  • Implement daily health screening practices, which includes (at minimum) a questionnaire of employees regarding potential COVID-19 exposure and symptoms over the past 14 days
  • Review all screening responses daily and maintaining records of this review
  • Require that employees who test positive for COVID-19, are symptomatic, and/or are potentially exposed due to close contact with a confirmed or suspected case complete at least a 14-day self-quarantine before returning to the office
  • Report any positive COVID-19 cases to state and local health departments immediately
  • Coordinate screening procedures with building managers
  • Ensure health screeners are protected from potential exposure and trained pursuant to appropriate protocols from the CDC, DOH, and OSHA
  • Prohibit employees with COVID-19 related symptoms from entering the office
  • Designate a site safety monitor who will ensure compliance with safety plans

Employer Takeaways

As demonstrated above, businesses will have to undertake a number of measures prior to and after reopening to ensure a safe and healthy workplace.  Here are a few key takeaways:

  • The guidelines require businesses to certify their affirmative compliance with the state’s obligations.  Employers must do so online through the NY Forward portal.
  • An early version of the guidelines required businesses to allow only “necessary” workers to work on-site (without defining “necessary” workers), but this language has since been removed.  Still, the guidelines encourage employers to create broad remote working policies and encourage continued teleworking wherever feasible.
  • The guidelines require daily screenings of employees, but do not require temperature screenings.  However, where temperature checks are utilized (pursuant to EEOC and DOH guidance), the New York guidelines state that businesses are prohibited from keeping records of employee health data (e.g. temperature data).  This is a new requirement over and above similar EEOC guidance and CDC guidance – New York employers must now ensure that they do not retain any personal temperature information.
  • For the first time, New York employers have new affirmative obligations to report suspected or confirmed COVID-19 cases in their workplaces, and must log all individuals in the workplace.  These requirements are aimed at enhancing health departments’ contact tracing efforts.
  • Employers also have new daily recording obligations, such as logging cleaning times/routines and reviewing and keeping all employee screening efforts.  
  • Businesses should proactively work with building managers and any other tenants of shared floors (e.g. where multiple businesses use shared facilities) to ensure compliance with these measures. 
  • Many of the guidelines’ measures aim to prevent multiple individuals from being in shared spaces at the same time.  Employers should also consider how to prevent bottlenecking situations where employees share space when waiting (e.g. for elevators, for screening checks, or at other points of ingress/egress).
  • Individuals, including employees and customers, can now file complaints against non-compliant businesses.  Businesses should note that failure to comply with the state guidance may lead to fines or other liability, and employers may not threaten or retaliate against employees for complaining that the business has failed to take adequate safety and health measures.

We expect additional guidance will be issued by the state on many of these requirements, but employers should move quickly to review and affirm their compliance with these new mandates.

For a more in-depth look at the issues employers face in reopening their workplaces, you can access Mintz's COVID-19 Reopening Roadmap Series here:
Preparing for the New Workplace Paradigm Series: a Roadmap for Employers in the Time of COVID-19

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Authors

Corbin Carter

Associate

Corbin Carter is a Mintz attorney who litigates all types of employment disputes before federal and state courts and counsels clients on compliance with federal, state, and local employment laws.

Michael S. Arnold

Member / Chair, Employment, Labor & Benefits Practice

Michael S. Arnold is an employment attorney at Mintz. He counsels clients on HR issues, defends management and senior executives, and guides companies through employment issues related to transactions. Michael is Chair of Mintz's Employment Litigation & Arbitration Practice.
Jessica W. Catlow drafts and negotiates executive compensation packages for Mintz clients, often in connection with mergers and acquisitions and private equity transactions. She also advises companies on risk mitigation strategies and compliance with state and federal employment laws.