On October 6, 2020, New York State Governor Andrew M. Cuomo issued Executive Order 202.68, launching the COVID-19 Micro-Cluster Strategy and Cluster Action Initiative.1 This order mandated the New York State Department of Health (DOH) to classify areas experiencing a cluster of COVID-19 cases into one of three zones of restrictions designated by color in order to detect and eliminate small outbreaks. A dozen clusters were initially established across the State, with additional designations and changes to zones taking effect on November 20, 2020 (business restrictions) and November 23, 2020 (school closures). This alert will explain how these zones are established and provide a general overview of the restrictions associated with each zone. Further industry-specific guidance for cluster zones is available at https://forward.ny.gov/cluster-action-initiative.

THE CLUSTER ACTION INITIATIVE

Designation of Cluster Zones

New York State has established quantitative thresholds for designating cluster zones primarily based upon the seven-day rolling average for the number of new daily cases and the percentage of positive tests. The table that follows contains the criteria New York State has established for making these determinations.2

Yellow and Orange Zones may also be put in place as buffers around Red or Orange Zones in order to restrict further spread from those zones.

Erie County Cluster Zones November 2020

It is important to note that multiple cluster zones may exist within the same county. For instance, parts of Erie County were designated to move into the Orange Zone on November 20, 2020, while the remainder resides in the Yellow Zone. Communities that moved to the Orange Zone include Amherst, Aurora, Buffalo, Cheektowaga, Clarence, Eden, Elma, Evans, Grand Island, Hamburg, Lackawanna, Lancaster, Orchard Park, Tonawanda (City & Town), and West Seneca.3 The map above shows how these different zones cut across Erie County.4

Designation of Cluster Zones
Geographic Area
(ZIP, Census Tract, etc.)
Target Metric for Entering Yellow Precautionary Zone Target Metric for Entering Orange Warning Zone Target Metric for Entering Red
Micro-Cluster Zone
Tier 1: Area is located within a county of 900,000 or more people, or located within a city of 90,000 or more people.
Areas in Tier 1: New York City boroughs; Nassau, Suffolk, Westchester and Erie Counties; Cities of Buffalo, Rochester, Syracuse, Albany and Yonkers.
Area has 7-day rolling average positivity above 2.5% for 10 days;
AND
Area has 10 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 3% for 10 days;
AND
Area has 10 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 4% for 10 days;
AND
Area has 10 or more new daily cases per 100,000 residents on 7-day average.
Tier 2: Area is located within a county of 150,000 or more people (and jurisdiction is not included in Tier 1).
Counties in Tier 2: Monroe, Onondaga, Orange, Rockland, Albany, Dutchess, Saratoga, Oneida, Niagara, Broome, Ulster, Rensselaer and Schenectady.
Area has 7-day rolling average positivity above 3% for 10 days;
AND
Area has 12 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 4% for 10 days;
AND
Area has 12 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 5% for 10 days;
AND
Area has 12 or more new daily cases per 100,000 residents on 7-day average.
Tier 3: Area is located within a county of 50,000 or more people.
Counties in Tier 3: Chautauqua, Oswego, Jefferson, Ontario, St. Lawrence, Tompkins, Putnam, Steuben, Wayne, Chemung, Clinton, Cayuga, Cattaraugus, Sullivan, Madison, Warren, Livingston, Herkimer, Washington, Otsego, Columbia, Genesee, Fulton and Franklin.
Area has 7-day rolling average positivity above 3.5% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 4.5% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 5.5% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Tier 4: Area is located within a county of less than 50,000 people.
Counties in Tier 4: Montgomery, Tioga, Cortland, Chenango, Greene, Allegany, Delaware, Orleans, Wyoming, Essex, Seneca, Schoharie, Lewis, Yates, Schuyler and Hamilton.
Area has 7-day rolling average positivity above 4% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 5% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Area has 7-day rolling average positivity above 6% for 10 days;
AND
Area has 15 or more new daily cases per 100,000 residents on 7-day average.
Additional factors that the State is required to consider when designating a cluster in any area of the State:

  • Area has a minimum of 5 new cases per day on 7-day average for geographic areas (i.e., ZIP code) with 10,000 or more residents, minimum of 3 new cases on 7-day average per day for areas with less than 10,000 residents;
  • The increase in positive cases or positivity reflect community spread and cannot be mostly explained by a cluster in a single institution (e.g., nursing home, factory, college, etc.) or household transmission; and
  • The DOH, in consultation with the local department of health, finds that based on the above-listed metrics and other epidemiological factors, such as an upward trend in total and daily hospital admissions from residents of this geographic area, that a zone designation is appropriate.

Cluster Zone Restrictions

New York State imposes different restrictions on communities based on their designated zone, with Yellow Zone designation having the least restrictions and the Red Zone having the greatest restrictions.

Yellow Zone restrictions are as follows:

  • Non-essential gatherings are limited to no more than 25 people;
  • Houses of worship are limited to 50% of maximum occupancy and must follow DOH guidance;
  • Restaurants and bars must limit seated groups to 4 people per party (indoor and outdoor dining is permitted);
  • Restaurants and bars close at 10:00 p.m. for on-premises consumption;5 and
  • Schools open for in-person instruction must follow DOH guidance regarding mandatory testing.6

Orange Zone restrictions are as follows:

  • Non-essential gatherings are limited to 10 people;
  • Certain high-risk, non-essential businesses are closed, including gyms, fitness centers and classes, barber shops, hair salons and personal care services;
  • Houses of worship are limited to the lesser of 25 people or 33% of maximum occupancy;
  • Indoor dining at restaurants and bars is banned, and outdoor dining is limited to 4 people per party;
  • Restaurants and bars close at 10:00 p.m. for on-premises consumption;7 and
  • Schools are closed to in-person instruction, but may reopen if they comply with stringent DOH requirements.8

Red Zone restrictions are as follows:

  • Non-essential gatherings are forbidden;
  • Non-essential businesses, as determined by the Empire State Development Corporation, shall reduce in-person workforce by 100%;
  • Houses of worship are limited to the lesser of 10 people or 25% of maximum occupancy;
  • Restaurants and bars may not serve customers on-premises and are limited to takeout or delivery; and
  • Schools are closed to in-person instruction, but may reopen if they comply with stringent DOH requirements.9

Criteria for Exiting a Cluster Zone Designation

Similar to the process for cluster zone designations, New York State has established quantitative thresholds for shedding such designations. Fourteen days after a cluster zone designation, the DOH will review data to determine whether the area has sufficiently reduced viral spread to receive a new cluster designation, or to exit the cluster zone entirely.10 Specific criteria is included in the following table.

Criteria for Exiting a Cluster Zone Designation
Geographic Area
(ZIP, Census Tract, etc.)
Target Metric to Leave Yellow Precautionary Zone Target Metric to Leave Orange Warning Zone  Target Metric to Leave Red Micro-Cluster Zone
Tier 1: Area is located within a county of 900,000 or more people, or located within a city of 90,000 or more people.
Areas in Tier 1: New York City boroughs; Nassau, Suffolk, Westchester and Erie Counties; Cities of Buffalo, Rochester, Syracuse, Albany and Yonkers.
Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 1.5% (7-day rolling average) for at least 3 consecutive days at end of 10-day period. Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 2% (7-day rolling average) for at least 3 consecutive days at end of 10-day period. Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 3% (7-day rolling average) for at least 3 consecutive days at end of 10-day period.
Tiers 2, 3, 4: Tiers 2, 3 and 4 contain all remaining areas within New York State not included in Tier 1. Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 2% (7-day rolling average) for at least 3 consecutive days at end of 10-day period. Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 3% (7-day rolling average) for at least 3 consecutive days at end of 10-day period. Area demonstrates decline in positivity (daily 7-day rolling average) over 10-day period AND has positivity below 4% (7-day rolling average) for at least 3 consecutive days at end of 10-day period.
Buffer Zones: Orange and Yellow Zones put in place solely as buffer zones may become eligible to qualify for a new zone designation or end such designation if there has been no notable increase in positivity, new cases or new hospital admissions over the 14-day period within the buffer zone.
Additional factors the DOH may consider in determining zone designations:

  • Trends in the daily hospital admissions from the geographic area;
  • A finding that new cases are tied to a specific congregate facility or defined cluster;
  • Increased compliance and enforcement actions taken by local government; or
  • Community cooperation to reduce viral spread.

Phillips Lytle stands ready to assist you on the application of these legal changes to your business. We are also prepared to provide counsel on the latest updates in this dynamic and rapidly changing legal environment.

Additional Assistance

For further assistance, please contact a member of the Coronavirus (COVID-19) Response Team or the Phillips Lytle attorney with whom you have a relationship.

  1. The provisions of Executive Order 202.68, originally scheduled to expire on November 5, 2020, were extended by Executive Order 202.72 through December 3, 2020.
  2. https://www.governor.ny.gov/news/governor-cuomo-details-covid-19-micro-cluster-metrics.
  3. https://www2.erie.gov/health/index.php?q=covid-19-cluster-action-initiative.
  4. https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/ErieZonesOnly.pdf.
  5. This provision is contained in Executive Order 202.74.
  6. The DOH’s guidance to schools in the Yellow Zone can be found here: https://coronavirus.health.ny.gov/system/files/documents/2020/10/guidance_for_school_testing_in_yellow_zone10_9_2020.pdf; https://coronavirus.health.ny.gov/system/files/documents/2020/11/supplemental-guidance_yellow-zone-school-testing-11.12.2020_0.pdf; and https://coronavirus.health.ny.gov/system/files/documents/2020/11/yellow-zone-update-11.14.20-addendum-final.pdf.
  7. This provision is contained in Executive Order 202.74.
  8. The DOH’s guidance to schools in the Red and Orange Zones can be found here: https://coronavirus.health.ny.gov/system/files/documents/2020/11/guidance-for-school-test-out-in-red-and-orange-zones_0.pdf.
  9. The DOH’s guidance to schools in the Red and Orange Zones can be found here: https://coronavirus.health.ny.gov/system/files/documents/2020/11/guidance-for-school-test-out-in-red-and-orange-zones_0.pdf.
  10. https://www.governor.ny.gov/news/governor-cuomo-details-covid-19-micro-cluster-metrics.