In recent weeks, the White House unveiled a plan for “Opening Up America Again” and Governor Andrew Cuomo detailed a two-phase plan to begin reopening New York as early as May 15th. While plans to reopen the economy are still in their earliest stages, now is the time for employers to start preparing to reopen their businesses.
Additional Guidelines for Phased Plan to Reopen New York
At a press conference on Tuesday, Governor Cuomo announced a two-phase plan along with the following guidelines:
- CDC Guidelines: Based on CDC recommendations, once a region experiences a 14-day decline in the hospitalization rate they may begin a phased re-opening.
- Industries: Businesses in each region will re-open in phases. Phase one will include opening construction and manufacturing functions with low risk. Phase two will open certain industries based on priority and risk level. Businesses considered "more essential" with inherent low risks of infection in the workplace and to customers will be prioritized, followed by other businesses considered "less essential" or those that present a higher risk of infection spread. Regions must not open attractions or businesses that would draw a large number of visitors from outside the local area.
- Business Precautions: Each business and industry must have a plan to protect employees and consumers, make the physical work space safer and implement processes that lower risk of infection in the business.
- Building Health Care Capacity: To maintain the phased re-opening plan, each region must have at least 30 percent of hospital beds and ICU beds available after elective surgeries resume.
- Testing Regimen: Regions must implement a testing regimen that prioritizes symptomatic persons and individuals who came into contact with a known COVID-positive person, and conducts frequent tests of frontline and essential workers. Regions must maintain an appropriate number of testing sites to accommodate its population and must fully advertise where and how people can get tested. The region must also use the collected data to track and trace the spread of the virus.
- Tracing System: There must be at least 30 contact tracers for every 100,000 people. The region must also monitor the regional infection rate throughout the re-opening plan.
- Isolation Facilities: Regions must present plans to have rooms available for people who test positive for COVID-19 and who cannot self-isolate.
- Regional Coordination: Regions must coordinate the re-opening of schools, transportation systems, testing and tracing with other surrounding regions.
- Re-imagining Tele-Medicine
- Re-imagining Tele-Education
- Regional Control Rooms: Each region must appoint an oversight institution as its control room to monitor regional indicators during the phased re-opening, including hospital capacity, rate of infection, PPE burn rate and businesses.
- Protect and Respect Essential Workers: Regions must continue to ensure protections are in place for essential workers.
Planning Now for the Reopening of the Economy
Governor Cuomo’s guidelines make clear that businesses must have a plan to protect employees and consumers, make the physical work space safer and implement processes that lower risk of infection in the business. Any business plan to reopen raises a host of important employment law issues. By way of example, one major question faced by employers is whether they may administer a COVID-19 test (a test to detect the presence of the COVID-19 virus) before permitting employees to enter the workplace without violating the Americans With Disabilities Act.
The answer is yes according to the EEOC in guidance updated on April 23, available here. According to the EEOC, employers may take steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Employers should ensure that the tests are accurate and reliable. If only certain employees are selected for testing, the employer must have a reasonable, objective basis for doing so — such as testing employees who are exhibiting persistent coughs or other symptoms associated with the disease.
As federal and state governments start to refine their plans for reopening the economy, now is the time for employers to prepare for a “new normal” that will almost certainly feature infection prevention measures, protocols for identifying and isolating sick employees, and a continuation of remote work arrangements. In addition to workplace safety measures, employers may also need to modify other policies and practices such as the following:
- Work hours, including start/stop time, breaks, lunch times, flexible hours, and staggered work hours;
- Time and attendance policies;
- Leave policies including sick leave;
- Travel policies including business and personal travel;
- Vacation/Paid Time Off;
- Remote working policies; and
Information technology and usage.
On Friday, May 1st at noon, my partners Joseph S. Brown and Evan Bussiere will be presenting at a Webinar for the Amherst Chamber of Commerce entitled “Rebound Your Business: What You Should Know”, which will explore the employment and other financial issues that businesses should be planning for as they return to work and “normal” operations. For more information and to register, please click here.
As I complete my 12-year tenure as the firm’s managing partner on May 1st, I understand what it takes to effectively lead a growing, mid-size business (100 employees with offices across the state) during a challenging economic climate. We can be a valuable resource for you. I look forward to continuing to Chair our Labor & Employment Group as we help clients navigate the coronavirus outbreak. Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at www.hurwitzfine.com