New York State Businesses Must Comply With COVID-19 Reopening Requirements
After two months of non-essential businesses in New York State being closed due to the COVID-19 crisis, New York State began allowing them to reopen in five of the seven upstate regions (Central New York, Finger Lakes, Mohawk Valley, North County and the Southern Tier) on May 15th, and on May 19th, expanded the reopening to a sixth region (Western New York). Non-essential businesses in the other four regions of the State (New York City, Long Island, Capital Region and Mid-Hudson) must remain closed until further notice. The reopening of non-essential businesses in each region will occur in four phases, with certain designated businesses being allowed to reopen in each phase. Before reopening, each business will be required to prepare a safety plan to protect employees and customers that complies with applicable industry-specific safety guidelines issued by the State. Businesses should start preparing now to meet the safety guidelines so that they will be able to reopen as soon as they are allowed.
The Four Business Reopening Phases
New York State has identified the following four reopening phases and the businesses that will be allowed to reopen in each phase.
- Agriculture, Forestry, Fishing and Hunting
- Retail (limited to curbside or in-store pickup or drop-off)
- Wholesale Trade
The above Phase One businesses are further broken down into subcategories, which can be found here.
- Professional Services
- Administrative Support
- Real Estate/Rental & Leasing
- Restaurants/Food Services
As of the date of this alert, only businesses included in Phase One and in those regions approved to reopen are permitted to operate, unless they qualify as an “essential” business under the Essential Business Guidance issued by the New York Empire State Development Corporation (ESDC) or are providing a support function to an essential business. Essential businesses and businesses supporting them may continue to operate regardless of whether their region or industry is approved to reopen, but they are nonetheless required to comply with any applicable new safety guidelines. Businesses can consult the ESDC’s Essential Business Guidance and use its online Business Reopening Lookup Tool (which requires submitting a North American Industry Classification System (NAICS) Code) to help them determine if they are considered essential or are able to reopen.
Safety Guidelines and Business Safety Plans
To reopen in the designated phase, businesses will have to prepare a safety plan that complies with the State-issued, business-specific safety guidelines and post it in a conspicuous place. (The plan does not need to be submitted to any State agency for approval, but must be retained on the business’s premises.) New York State has issued template safety plans for businesses to use in developing their own plan. A “Responsible Party” must also affirm that the business understands the safety guidelines and that it is obligated to operate in accordance with them and ensure that it does so. (A “Responsible Party” includes the property or business owner, business operator or other designated person.)
Although separate safety guidelines have been issued for different industries, all of the guidelines issued to date address the following areas: (1) physical distancing; (2) protective equipment; (3) hygiene and cleaning; (4) communication; and (5) health screening. Some of the mandatory requirements under each category include, but are not limited to, the following:
- Ensure six (6) feet of distance between personnel, unless safety or core function or the work activity requires a shorter distance.
- Post social distancing markers using tape or signs that denote six (6) feet of spacing in commonly used and other applicable areas on the site.
- Employers must provide employees with an acceptable face covering at no cost to the employee and have an adequate supply of coverings in case of replacement.
- Face coverings must be cleaned or replaced after use or when damaged or soiled, may not be shared, and should be properly stored or discarded.
Hygiene and Cleaning
- Adhere to hygiene and sanitation requirements from the Centers for Disease Control and Prevention and New York State Department of Health, and maintain cleaning logs on site that document date, time and scope of cleaning.
- Post signage to remind personnel and customers to adhere to proper hygiene, social distancing rules, appropriate use of protective equipment, and cleaning and disinfecting protocols.
- Train all personnel on new protocols and frequently communicate safety guidelines.
- Establish a communication plan for employees, visitors and clients with a consistent means to provide updated information.
- Implement mandatory health screening assessments before employees begin work each day and for essential visitors (but not customers), which asks about (1) COVID-19 symptoms in the past 14 days; (2) positive COVID-19 test results in the past 14 days; and/or (3) close contact with a confirmed or suspected COVID-19 case in the past 14 days. Daily review of the assessment must be documented.
- Employees who present with COVID-19 symptoms should be sent home to contact their health care provider for medical assessment and COVID-19 testing. If tested positive, the employee may only return after completing a 14-day quarantine.
- Employees who present with no symptoms, but have tested positive in the past 14 days, may only return to work after completing a 14-day quarantine.
- Have a plan for cleaning, disinfecting and contact tracing in the event of a positive case.
The safety guidelines also require businesses to comply with applicable federal requirements. The full industry safety guidelines are available here.
The ESDC has issued a set of frequently asked questions about the reopening process which state, among other things, that businesses that cannot comply with the safety guidance, including being unable to procure enough protective equipment for all workers, will not be given a waiver and will not be able to operate.
The reopening requirements are subject to change, so businesses should keep abreast of developments as they occur and respond accordingly. Businesses needing assistance with developing a reopening plan, or any other COVID-19-related business or employment matter, should consult with their legal advisor. Phillips Lytle attorneys are ready to assist any businesses needing help with such matters.