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New York Unveils More Details Regarding Phase 1 of Reopening: Is Your Business Included?

By Joseph S. Brown, Esq.

On May 11, NY Governor Andrew Cuomo announced that certain low-risk business and recreational activities will be ready to reopen statewide on May 15th, including landscaping and gardening; outdoor, low-risk recreational activities such as tennis; and drive-in movie theaters.  He also announced that the Finger Lakes, Southern Tier and Mohawk Valley Regions have met all seven metrics required to begin Phase 1 of the state’s phased reopening plan when NYS on PAUSE expires.  Yesterday, it was announced that Western New York was ready to begin Phase 1 on May 19.

Governor Cuomo released a 51-page document entitled the "NY Forward Reopening" Plan, available here.  The state also unveiled an “Industries Reopening by Phase” on the NY Forward website, which can be accessed here.  This page provides more details about Phase 1 which covers the following industries:  (1) Construction; (2) Agriculture, Forestry, Fishing and Hunting; (3) Retail - (Limited to curbside or in-store pickup or drop off); (4) Manufacturing; and (5) Wholesale Trade. For each industry, the website includes links to Summary Guidelines for Employers and Employees, Detailed Interim Guidance During the COVID-19 Emergency, and a Safety Plan Template.  This alert provides a brief overview of those materials and what is expected of businesses as they make plans to re-open.

Business Safety Precautions

Under the NY Forward Reopening Plan, businesses are instructed to develop a plan for “Business Safety Precautions,” which consists of three factors: 

  1. The first factor is protections for employees and customers. These include possible adjustments to workplace hours and shift design as necessary to reduce density in the workplace; enacting social distancing protocols, and restricting non-essential travel for employees.
     
  2. The second is changes to the physical workspace, including requiring all employees and customers to wear masks if in frequent close contact with others and implementing strict cleaning and sanitation standards.
     
  3. The last factor for businesses to consider is implementing processes that meet our changing public health obligations, like screening individuals when they enter the workplace, or reporting confirmed positives to customers. While these processes will vary from business to business, almost everyone will have to adapt, in some way or another, to our new normal.
     

Phase 2 of the reopening plan will address the following industries:  Professional Services, Retail, Administrative Support, and Real Estate/Rental & Leasing.  This will be followed by Phase 3 for Restaurants/Food Services, and Phase 4 which will cover Arts/Entertainment/Recreation/Education.

Industry Specific Safety Guidelines and Plans

For each industry included in Phase 1 of the Reopening, NY added new interim guidance and forms that businesses must become familiar with as they develop workplace safety plans:

  • Summary Guidelines for Employers and Employees:  NY has issued a summary of guidelines particular to each industry – broken down between “Mandatory” and “Recommended Best Practices” – for physical distancing, protective equipment, hygiene and cleaning, and communication.
     
  • Detailed Interim Guidance During the COVID-19 Emergency: “These guidelines are minimum requirements only and any employer is free to provide additional precautions or increased restrictions. These guidelines are based on the best-known public health practices at the time of Phase I of the State’s reopening, and the documentation upon which these guidelines are based can and does change frequently.”

    At the end of the Interim Guidance for each industry, there is a link to a Business Affirmation form, which is to be completed to confirm compliance with the NY Forward reopening guidance.
     
  • Safety Plan Template: “Each re-opening business must develop a written Safety Plan outlining how its workplace will prevent the spread of COVID-19. A business may fill out this template to fulfill the requirement, or may develop its own Safety Plan. This plan does not need to be submitted to a state agency for approval but must be retained on the premises of the business and must made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection.”
     

The Detailed Interim Guidance further provides that “Responsible Parties must conspicuously post completed safety plans on site. The State has made available a business reopening safety plan template to guide business owners and operators in developing plans to protect against the spread of COVID-19.” (emphasis added).

Stay Up to Date

While the Detailed Interim Guidance During the COVID-19 Emergency documents were tailored to each industry in Phase 1, the minimum requirements, precautions, and best practices identified therein are instructive regardless of the phase your business is in.  Businesses should incorporate that guidance as part of their plans to reopen.  The other thing to keep in mind is that, absent specific business reasons, there is no rush to return to the workplace just because NY has moved onto a new phase of the NY Forward Plan. Each business will have to independently evaluate when it is safe to reopen.

We anticipate that the state will continue to supplement its reopening guidance and issue similar documents for industries in the subsequent phases of the NY Forward Reopening Plan.  Businesses are advised to stay up to date on guidance being issued by the State.  Below we provide links to additional information that can help your business.

The Empire State Development Corporation has created a preliminary FAQ page regarding the NY Forward Reopening Plan, available here.   This guidance, among other things, makes clear that: (1) businesses which previously qualified as “essential” are subject to the reopening plan requirement going forward; and (2) there are no waivers for businesses that cannot comply with the current guidance.

In addition, the state guidance makes clear that businesses should comply with Centers for Disease Control and Prevention recommendations, regulations under the Occupational Safety and Health Act (OSHA), and other evolving federal, state, and local public health and COVID-19 safety guidelines.  This guidance is developing rapidly.  To find the latest guidance, please visit our website for Helpful Links to Help You Navigate Through The Coronavirus.

Our Labor & Employment team has previously provided alerts on reopening plans and issues that might be useful as your business prepares for the “new normal”:


Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to 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


Joseph S. Brown – [email protected]

Ann E. Evanko – [email protected]

Katherine L. Wood – [email protected]

Labor & Employment Law

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