With WNY Poised for Phase 2, Is Your Business Ready to Re-open?

By Joseph S. Brown, Esq.

On May 28, Governor Cuomo issued guidelines for Phase 2 of the NY Forward reopening plan.  The Central NY, Finger Lakes, Mohawk Valley, North Country and Southern Tier regions were recently cleared to begin Phase 2, with Western New York getting the green light today.  This alert summarizes some of the key issues that businesses must consider as they make plans to reopen, including putting together a workplace safety plan.

Determine if Your Business Is Included In Phase 2

As part of that New York Forward Plan, the State has released detailed guidance, and a safety plan template, for each industry which is part of Phase 2 of reopening: (1) offices; (2) real estate; (3) essential and Phase 2 in-store retail; (4) vehicle sales, leases, and rentals; (5) retail rental, repair, and cleaning; (6) commercial building management; and (7) hair salons and barbershops.   Those materials can be accessed here.

The State has made clear that the following businesses remain closed: 

  • Malls;
  • Dine-in and on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption;
  • Large gathering/event venues;
  • Gyms, fitness centers, and exercise classes, except for remote or streaming services;
  • Video lottery and casino gaming facilities;
  • Movie theaters, except drive-ins; and
  • Places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.

For help determining whether or not your business is eligible to reopen, the State has provided a reopen lookup tool available here.

Summary Guidelines, Interim Guidance, and Safety Plan Templates

For each industry included in Phase 2 of the Reopening, NY added summary guidelines, new interim guidance, and forms that businesses must become familiar with as they develop workplace safety plans:

  1. 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. 
  2. 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 2 of the State’s reopening, and the documentation upon which these guidelines are based can and does change frequently.”

    Businesses should note that Phase 2 guidance may be different in several material aspects from earlier guidance. Businesses are cautioned that “where guidance in this document differs from other guidance documents issued by New York State, the more recent guidance shall apply.”
  3. Business Affirmation: 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. 
  4. 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 be made available to the New York State Department of Health (DOH) or local health or safety authorities in the event of an inspection.” 

Non-essential New York businesses must comply with these various requirements prior to reopening operations and to continue adhering to these compliance measures once worksite operations resume.  In addition, if your business or certain parts of your business functions were “essential” under Empire State Development’s Business Guidance, a business must comply with applicable interim guidance once it is posted.  Empire State Development has an FAQ page addressing a variety of issues on complying with the NY Forward Plan available here.

Additional Resources to Help You Develop a Business Safety Plan

The state guidance makes clear that businesses should also comply with Centers for Disease Control and Prevention (CDC) 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.  For example, just last week the CDC issued “COVID-19 Employer Information for Office Buildings.”

To find the latest guidance, please visit our website for Helpful Links to Help You Navigate Through The Coronavirus and see the previous alerts in our COVID-19 Resource Center.

On a final note, I urge you to join me and my colleague, Katherine Wood, for a webinar entitled “Back to Business: What you need to know about the reopening."   The webinar, sponsored by the Better Business Bureau of Upstate New York, is scheduled for June 4th from noon to 1:00 p.m.  In this webinar, Katie and I will cover issues such as:

  • What Changes Your Business May Have to Put Into Place
  • How to Put Together Your Business Reopening Plan
  • Returning to the Workplace for Employees and Employers
  • Employee Health Screenings – Do's and Don’ts
  • Steps to Take if an Employee Tests Positive

For more information on how to register, please click here.

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

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