New York State has begun transitioning from "New York State on PAUSE," which has shuttered non-essential businesses since March 22, 2020, to "NY Forward," which allows businesses to gradually reopen in four phases, industry by industry, under specific restrictions. See our prior blog for more information on Governor Cuomo's reopening announcement and plan details.

Under guidance issued by the New York State Department of Health, all employers—even essential businesses that have maintained operations while the state has been "on PAUSE"—are expected to develop, maintain, and conspicuously post in the workplace a written safety plan addressing a range of matters in order to resume operations. Employers in New York that have not yet developed a safety plan should begin that process now.

Phased Reopening in New York

Under New York State's four-phase reopening plan, each county has been allocated to one of 10 regions. Once a region has met seven metrics in four "core factors" concerning new infections, healthcare capacity, diagnostic testing capacity, and contact tracing capacity, certain employers within that region may begin to resume operations as per their designation listed below.

Businesses permitted to open in each phase include:

  • Phase 1 – Construction, agriculture, forestry, fishing and hunting, manufacturing, wholesale supply chain, and select retail industries.
  • Phase 2 – Professional services, retail, administrative support, and real estate/rental leasing.
  • Phase 3 – On-location restaurants.
  • Phase 4 – Arts, entertainment, recreation, and education.

To date, seven of New York's 10 regions have satisfied the metrics identified in the reopening plan and have transitioned to Phase 1. New York City, Long Island, and the Mid-Hudson region remain "on PAUSE."

Reopening Requirements for Businesses

As non-essential New York businesses plan to bring employees back to physical workspaces, it will be critical for them to do so in accordance with the State's guidelines. To date, guidance is available for each of the industries cleared to reopen in Phase 1. These guidelines include industry-specific requirements, recommended best practices, and minimum standards in matters concerning physical distancing, the provision of protective equipment, and health screening and testing. Further, each business in the state is expected to acknowledge through an online portal its obligation to operate in accordance with the applicable guidance.

The industry-specific guidance published to date specifies that employers are to report even suspected cases of COVID-19 in the workplace to state and local public health authorities. This is a notable departure from precedent, as under applicable New York law, the duty to report cases of COVID-19 falls to testing facilities and healthcare providers in the first instance. The guidance from the New York State Department of Health suggests that all employers will be expected to take a more active role in this reporting process.

The Department of Health has developed a detailed template identifying topics for inclusion in a business's safety plan. The topics addressed in the template include, among other things, the development of protocols for health screening assessments, the maintenance of visitor logs to facilitate contact tracing, and the identification of specific employees responsible for contacting health authorities in the event of a confirmed or suspected case of COVID-19 in the workplace.

New York's Empire State Development Corporation has issued FAQs to aid employers as they transition to reopening. A business reopening lookup tool is available to help employers determine whether they may reopen.

Moving Forward

Governor Cuomo's New York Forward Plan establishes two-week intervals between moving from one phase to the next so that "state and local leaders [may] monitor the effects of the reopening and ensure hospitalization and infection rates are not increasing before moving to the next phase and permitting more economic activity." Given the implementation of Phase 1 in various New York regions, it is anticipated that the State will publish similar guidance relating to industries available to open in Phase 2 shortly.

Davis Wright Tremaine attorneys remain available to help employers across New York State and elsewhere with the reopening process and will provide updated information as it becomes available.

The facts, laws, and regulations regarding COVID-19 are developing rapidly. Since the date of publication, there may be new or additional information not referenced in this advisory. Please consult with your legal counsel for guidance.

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