The Long PAUSE: New York State to Reopen in Four Phases

As we reported previously, New York State has been “on PAUSE” since 8:00 p.m. on Sunday, March 22, 2020, when all non-essential businesses across the state were closed pursuant to Governor Cuomo’s “New York State on PAUSE” executive order. While that executive order will expire on May 15, 2020, the plan for gradually reopening New York State means that most businesses will remain shuttered for weeks to come.

New York State Will Reopen by Region

At his daily COVID-19 briefing on Monday, May 4, 2020, Governor Cuomo announced that New York State will reopen by region: “[r]eopening is not going to happen statewide all at once – New York has diverse regions and those regions have different circumstances, so rather than wait for the whole state to be ready to reopen we are going to analyze the situation on a regional basis.”

New York State’s 10 regions are depicted in this map:

Factors Determining When a Region Can Begin to Reopen

State officials will monitor the following four “core factors” to determine if a region can reopen:

• New Infections: Regions must have at least 14 days of decline in total net hospitalizations and deaths on a three-day rolling average. In regions with few COVID-19 cases, the region cannot exceed 15 net new total hospitalizations or five new deaths on a three-day rolling average. Additionally, regions must have fewer than two new COVID-19 patients admitted per 100,000 residents per day.
• Healthcare Capacity: Regions must have at least 30 percent total hospital and ICU beds available. Additionally, hospitals must have at least 90 days of personal protective equipment stockpiled.
• Diagnostic Testing Capacity: Regions must have the capacity to conduct 30 diagnostic tests for every 1,000 residents per month.
• Contact Tracing Capacity: Regions must have a baseline of 30 contact tracers for every 100,000 residents, and additional tracers based on the projected number of cases in the region.

As of May 4, 2020, some regions are closer to reopening than others, but no region meets all the requirements necessary to reopen safely and securely. It is likely that the regions that have been hardest hit by COVID-19, including New York City, will effectively remain “on pause” for weeks to come.

Four Phases of Regional Reopening

Once a region has met the criteria to begin reopening, that process will take place in four phases:

• Phase 1: Construction, manufacturing and wholesale supply chain, and select retail with curbside pickup.
• Phase 2: Professional services including finance and insurance, retail, administrative support, and real estate/rental leasing.
• Phase 3: Restaurants/food services and hotels/accommodations.
• Phase 4: Arts/entertainment/recreation and education.

State-Imposed Reopening Requirements for NYS Businesses

Upon reopening, businesses in New York State will be required to do the following to help lower the risk of spreading the virus:

• Adjust workplace hours and shift design as necessary to reduce density in the workplace;
• Enact social distancing protocols;
• Restrict non-essential travel for employees;
• Require all employees and customers to wear masks if in frequent contact with others;
• Implement strict cleaning and sanitation standards;
• Enact a continuous health screening process for individuals to enter the workplace;
• Continue tracing, tracking and reporting of cases; and
• Develop liability processes.

While New York City businesses (and other “downstate” businesses, including those on Long Island) are likely to remain closed for weeks to come, there is a significant amount of planning and preparation that employers across New York State should be tackling now, in order to be ready to reopen when they are permitted to do so.

Davis Wright Tremaine attorneys remain available to help employers across New York State and elsewhere with this planning process, and we will continue to provide resources such as our May 4, 2020 “Checklist for Employers Planning to Reopen or Return to the Workplace” and our May 5, 2020 “Reopening: Returning to the Workplace & Employment-Related Issues ” webinar.

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.

DWT will continue to provide up-to-date insights and virtual events regarding COVID-19 concerns. Our most recent insights, as well as information about recorded and upcoming virtual events, are available at www.dwt.com/COVID-19.