As described in our prior client alert, New York has adopted a phased approach, by region and by sector, to the relaxation of the workplace restriction orders that first took effect on March 15. As part of the state’s COVID-19 reopening plan, on May 28 and May 29, New York Governor Andrew Cuomo issued a pair of executive orders requiring employers who resume on-site operations, as well as essential businesses that have remained open, to adhere to certain health and safety rules issued by the state Department of Health. The rules come as the governor announced that several regions of the state will begin Phase Two and that New York City will enter Phase One on June 8.
Although called “interim guidance,” the Department of Health’s rules are detailed and prescriptive, and the governor’s orders make clear they are mandatory for all employers with on-site operations. The rules address myriad issues, from social distancing and face coverings to restarting commercial HVAC systems. In addition to procedural requirements, such as drafting a written safety plan, employers likely will need to make significant changes to workplaces. Employers must also affirm their understanding of and their future compliance with these obligations in a submission to the state.
Given the significant changes required, employers throughout the state—no matter which phase their region is currently in—should thoroughly acquaint themselves with these rules. This alert aims to help by briefly explaining the state’s reopening plan and surveying the new regulatory landscape workplaces must navigate as employers attempt to bring employees and customers back on-site.
A. New York’s Regional Reopening Thus Far
On May 11, 2020, New York published its NY Forward plan, which set forth a region-by-region relaxation of workplace restrictions in four phases.1 The plan allows certain employers in each region to resume on-site operations based on (1) when their region meets seven health- and healthcare-related metrics, which are tracked on the state’s Regional UnPause Dashboard,2 (2) the type of on-site operations conducted, and (3) whether they adopt certain safety modifications and procedures. WilmerHale previously published a client alert addressing the details of New York’s plan, which can be found here.
Regions of the state that have been less impacted by the coronavirus began Phase One on May 15.3 Phase One allows five categories of employers to resume operations—construction; manufacturing; wholesale trade; certain retail for curbside pickup only; and agriculture, forestry and fishing—so long as employers operate according to guidance from the Department of Health. Additional regions can begin Phase One as soon as state officials determine they meet the prescribed health- and healthcare-related criteria. As of May 28, all regions except New York City had entered Phase One.4 New York City is currently expected to begin Phase One on June 8.5
Governor Cuomo’s two latest executive orders—Nos. 202.346 (issued May 28) and 202.357 (issued May 29)—continue limits for on-site operations below their normal levels through June 278 and allow certain regions to begin Phase Two. State officials had previously said that local officials would dictate the pace of reopening and did not definitively articulate whether additional criteria would need to be met beyond allowing two weeks to pass between phases. This caused some disagreement among state and local officials over whether certain regions could proceed. Nevertheless, the governor’s May 29 order permits five regions to begin Phase Two, subject to employers in those regions operating in accordance with Department of Health guidance.9
Phase Two allows additional employer categories to restart on-site operations. These are professional services; administrative support; information technology; real estate services; building and property management, leasing, rental, and sales services; in-store retail, rental, repair and cleaning; barbershops and hair salons (with limited services only); and motor vehicle leasing, rentals and sales.
A timeline has not yet been announced for Phase Three (restaurants/food services and hotels) or Four (arts/entertainment/recreation and education).
B. New York Adopts Sector-Specific Reopening Rules
As directed by Executive Order No. 202.34 and Executive Order No. 202.35, the Department of Health has published binding guidance for all industries allowed to reopen in Phases One and Two.10 Each industry has its own sector-specific guidelines.
Phase One Industries
- Non-food Related Agriculture
- Fishing and For-Hire Vessels
- Phase One Retail (delivery, curbside and in-store pickup only)
- Wholesale Trade
Phase Two Industries
- Office-Based Work
- Real Estate Services
- Commercial Building Management
- Essential and Phase Two Retail (in-store operations)
- Vehicle Sales, Leases and Rentals
- Retail Rental, Repair and Cleaning
Every sector-specific document—for both Phase One and Phase Two industries—requires that employers electronically submit an affirmation attesting that they have “reviewed the New York State interim guidance for business re-opening activities and operations during the COVID-19 public health emergency . . . and understand [their] obligation to operate in accordance with such guidance.” 11
The Department of Health’s sector-by-sector guidance is organized around three categories of issues: people, places and processes. People focuses on physical distancing and restricting activities that pose higher risks of transmission. Places includes rules addressing workplace infrastructure, sanitation and availability of personal protective equipment. Processes emphasizes screening and testing of employees and visitors, as well as the adoption of contact tracing protocols.
Office employers, for example, must make significant changes. During Phase Two, the total number of occupants is limited to no more than 50% of the maximum legally permissible occupancy at any given time. Office employers must ensure six feet of separation between personnel, post distancing markers with tape or signs, limit gatherings, and establish areas for pickups and deliveries. They must provide face coverings at no cost to employees, limit the sharing of objects or touching of common surfaces, maintain logs of persons who have close contact with others in the workplace, and adopt rigorous hygiene and sanitation practices. Such employers must also implement mandatory health screenings for employees and visitors, which “[a]t a minimum” determine “whether an employee has: (a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has had symptoms of COVID-19; (b) tested positive for COVID-19 in the past 14 days; and/or (c) has experienced any symptoms of COVID-19 in the past 14 days.” Screening can be “performed remotely (e.g., by telephone or electronic survey) . . . or may be performed on-site.” Employees who respond positively to any of the above criteria should not be allowed to enter the office and should be instructed to contact their healthcare provider for assessment and testing. Employers must also “immediately notify the local health department about any positive case.”
In addition to making the various people, places and processes changes required by the guidance, all employers also must develop and conspicuously post a written safety plan outlining how their workplace will prevent the spread of COVID-19. The state has provided a template on its website.12 The safety plan need not be submitted to the state or formally approved; however, employers must keep it on the premises of their business and make it available to the Department of Health or local authorities upon inspection.
Governor Cuomo also recently extended all previous authorizations for enforcement of the state’s rules through June 13.13 WilmerHale discussed the state’s enforcement mechanisms, which include civil penalties and business closures, in a previous client alert here.
C. Interaction With CDC Guidance
The New York Department of Health guidance comes as the Centers for Disease Control and Prevention (CDC) has also issued its own explicitly nonbinding guidance, including specific guidance for office workplace environments. In many instances, New York’s rules mirror or explicitly incorporate the CDC guidance. For example, both the CDC and Department of Health direct offices to stagger shifts or break times, rigorously disinfect workspaces, and increase ventilation with outside air.14 Both also call on employers to develop a system for tracing close contacts with an individual who has a confirmed or suspected case of COVID-19.15
Other New York state rules go further than the CDC guidance. For example, the Department of Health requires that office employers and commercial building managers adopt measures to “reduce bi-directional foot traffic using tape or signs with arrows in narrow aisles, hallways, or spaces.” The Department of Health’s guidance also addresses other issues not directly related to virus transmission, such as setting rules for restarting commercial buildings by flushing out stagnant water systems and monitoring HVAC cooling towers.
The CDC and New York have also disagreed somewhat regarding a critical issue related to the reopening of the New York City region: the safety of public transportation networks. CDC guidance initially encouraged employers to provide workers with incentives to “use forms of transportation that minimize close contact with others, such as offering reimbursement for parking for commuting to work alone or single-occupancy rides.”16 After state public transportation officials objected, the CDC clarified that such recommendations should be adopted “if feasible.” The CDC and Metropolitan Transportation Authority officials do agree that, where possible, employers should stagger working hours and continue work-from-home policies, so as to reduce commuter density on mass transit.17
Employers throughout New York, no matter their industry or on-site working environment, will need to adapt their business operations and policies to comply with the state’s guidance. Many employers, even those in New York City, should begin now, while recognizing that the situation and relevant guidelines may continue to change. WilmerHale will continue to track developments and is available to provide specific guidance on how to comply with this new regulatory landscape. We invite employers to start by reaching out to the authors of this alert or their regular contacts at WilmerHale.