Phase 2 Guidance for Employers Reopening in New York

As detailed in our prior advisories (available here and here), New York State is no longer "on PAUSE" in response to COVID-19 and has transitioned to a four-phase "NY Forward" reopening plan. On May 28, 2020, the New York State Department of Health published guidance for those industries permitted to resume operations in Phase 2 of the "NY Forward" reopening process. New York employers with operations falling under Phase 2 should review the Department of Health's guidance and adjust operations accordingly.

Businesses permitted to open in Phase 2 include:

• Professional services;
• Finance and insurance;
• Non-essential retail;
• Administrative support; and
• Real estate, rental, and leasing. 

The New York Forward Plan establishes a minimum of two-week intervals between a region's transition from one phase to the next. To date, five of New York's 10 regions have been approved to transition from Phase 1 to Phase 2. While New York City remains "on PAUSE," Governor Cuomo has announced that New York City is anticipated to enter Phase 1 on June 8, 2020.

Phase 2 Guidance

At the outset of its Phase 2 guidance, the New York State Department of Health reminds readers that certain businesses "remain closed," including but not limited to malls, dine-in restaurants and bars, fitness centers, and movie theaters.

The New York State Department of Health then provides guidance, both in summary and in detail, for the following workplace settings concerning the industries cleared to reopen in Phase 2:

• Office-based work;
• Real estate services;
• Essential and Phase 2 retail establishments;
• Vehicle sales, leases, and rentals;
• Retail rental, repair and cleaning, "such as electronics repair, equipment rental, clothing rental, laundromats, other clothing/fabric cleaning services, and residential cleaning services";
• Commercial building management; and
• Hair salons and barber shops. 

The Phase 2 guidelines "apply to non-essential businesses in regions that are permitted to reopen, essential businesses throughout the state that were previously permitted to remain open, and commercial and recreational activities that have been permitted to operate statewide with restrictions."

The guidelines include industry-specific requirements, recommended best practices, and minimum standards in matters concerning physical distancing, the provision of protective equipment, cleaning and hygiene, workplace communication, 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.

Office-Based Employers in New York City

The guidelines provided for office-based work, as well as for the management of commercial building space, give insight into what may be expected in this sector when New York City enters Phase 2.

Occupancy Guidance

• Building managers are expected to limit elevator occupancy to 50% ridership capacity and to require that all occupants wear face masks while on premises.
• Similarly, office-based employers are required to limit occupancy in the office to no greater than 50% of the maximum as set forth in the certificate of occupancy. The guidance also encourages staggered arrival times to minimize crowding.
• Office-based employers are expected to cooperate with building managers to establish a screening protocol for every person entering the workplace, which may involve temperature checks consistent with EEOC guidance. However, employers and building managers are prohibited from keeping records of individuals' health data. 

Reporting Guidance

• Positive Case: Per Phase 2 guidance, if a person comes in close contact with others at the employer's location and tests positive for COVID-19, the employer must immediately notify state and local health departments and cooperate with contact tracing efforts. Employers must maintain the confidentiality of the individual's identity in accordance with applicable law.
• Symptomatic Employees: If an employee shows symptoms consistent with COVID-19 in the workplace, an office-based employer is to immediately notify the building manager with information concerning where the individual spent time in the building and is to advise building management if a symptomatic employee tests positive for COVID-19. 
  
  This guidance differs from that which was provided to businesses authorized to resume operations in Phase 1, in which employers were to immediately notify state and local health departments of suspected cases. Thus, office-based employers are only required to report confirmed cases of COVID-19 to state and local health authorities but are expected to cooperate with building managers in the event of a symptomatic employee in the workplace.

As we advised under Phase 1, any reporting requirement is a departure from New York legal precedent, under which the duty to report cases of COVID-19 falls to testing facilities and healthcare providers in the first instance. Thus, per the New York State Department of Health's guidance, all employers will continue to take a more active role in this reporting process.

Reopening Safety Plan

The Department of Health has also linked to the template made available in connection with the Phase 1 reopening guidance 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 case of COVID-19 in the workplace.

New York's Empire State Development Corporation has updated its FAQs to aid employers as they transition to reopening. In addition to the business reopening lookup tool summarized in our previous advisory, the State has also developed an early warning monitoring dashboard that provides region-specific insight into trends concerning key metrics related to the containment of COVID-19.

Beyond Phase 2

As New York moves forward with reopening, it is anticipated that the State will continue to publish guidance specific to industries authorized to open in Phases 3 and 4. Guidance published to date is expressly characterized as "interim" and makes clear that employers are expected to adjust practices as circumstances dictate. As such, employers must be prepared to react quickly in response to updated guidance and developing facts.

State and local guidance is not always clear or complete, and employers may struggle to determine what steps are required as opposed to recommended. 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.

Some of our resources for employers on New York's reopening plans include the following:

• Phase 1 Guidance for Employers Reopening in New York
  
• The Long PAUSE: New York State to Reopen in Four Phases
  
• "Reopening: Returning to the Workplace & Employment-Related Issues," Davis Wright Tremaine 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.