New York Issues Detailed Reopening Plan and Guidance as the State Moves Forward

By: Lorie Almon, Anne Dana, Samuel Rubinstein, and Glenn Smith

Seyfarth Synopsis: As part of Governor Cuomo’s New York Forward plan, “Phase One” industries in five regions began to reopen this past weekend: Central NY, Finger Lakes, Mohawk Valley, North Country, Southern Tier, with the Capital Region and Western NY expected to open later this week. It is important to remember that businesses located in counties outside these five regions may not reopen, and that industries will open in phases that are at least two weeks apart. Moreover, before reopening, all businesses must first comply with mandatory requirements issued by the state, including submitting an affirmation and preparing a “business safety plan.” All individuals working in open Phase One businesses are now eligible for virus testing.

New York Forward

As discussed previously, Governor Cuomo’s reopening plan — titled “New York Forward” — is set to replace gradually the state’s stay-at-home directive known as “New York Pause.” Reopening under New York Forward refers to non-essential businesses and business activities. Essential businesses and business activities may remain open subject to different guidelines issued by New York State.[1] In sum, reopening will be governed by region, will occur in phases, and requires mandatory compliance with specific guidance. The following provides a high-level overview of these factors.

1. Reopening By Region

A hallmark of New York Forward is that New York will reopen on a regional basis, with the state divided into ten regions. A region can only proceed with reopening when it meets seven key public health metrics:

(1) 14-day decline in total hospitalizations,

(2) 14-day decline in hospital deaths,

(3) new hospitalizations under 2 per 100k residents,

(4) at least 30% hospital bed capacity,

(5) at least 30% ICU bed capacity,

(6) 30 per 1k residents tested monthly, and

(7) 30 contact tracers per 100k residents.

A “regional monitoring dashboard” (available here) shows each region’s status with respect to meeting each metric. Non-essential businesses in a region that has not met these metrics cannot reopen.

Starting May 15, 2020, the Central New York, Finger Lakes, Mohawk Valley, North County, and Southern Tier regions will be allowed to reopen Phase One industries only. The Capital Region and Western New York are expected to open later this week, as soon as they hire additional contact tracers, having met all other criteria.

2. Reopening in Phases

Once a region meets the necessary metrics, non-essential businesses are still subject to re-opening in phases. The four phases are:

Phase One (open in certain regions)

Construction
Agriculture, Forestry, Fishing and Hunting
Retail (Limited to curbside or in-store pickup or drop off)
Manufacturing
Wholesale Trade

Phase Two (not open)

Professional Services
Retail
Administrative Support
Real Estate / Rental & Leasing

Phase Three (not open)

Restaurants / Food Services (for dining in; take-out and delivery are already permitted)

Phase Four (not open)

Arts / Entertainment / Recreation
Education

A region may not move from one phase to the next until at least two weeks have passed without the region falling out of compliance with the seven public health metrics. State-issued guidance details the types of businesses that fall into Phase One, and can be found here. The State has also created a useful business reopening lookup tool, which can help a business determine whether it qualifies for reopening by utilizing its NAICS Code and business description. Businesses should ensure they qualify under Phase One.

Yesterday, Governor Cuomo declared that all individuals who are returning to work in Phase One are eligible to receive a diagnostic test from the state. The Governor advised that the state now has sufficient capacity to test all such workers, and noted that there are more than 700 open testing sites in New York.

3. Reopening Guidance - Requirements, Affirmation, and Safety Plan

Before reopening, every business must meet specific mandatory requirements. The state has published “summary guidelines” (which list both the mandatory requirements and the recommended guidance) and detailed “final interim guidance” for each business category listed in Phase One. (The guidance is not identical and a business should ensure it is following the applicable guidance based on its respective industry).

Businesses are also required to submit an affirmation to the state confirming that the business has read and agrees to operate in compliance with the detailed guidance. A link to the affirmation form is located at the end of the detailed guidance and can be found here.

Links to the summary guidelines and the final interim guidance for each industry is available below:

Construction: the summary guidelines and final interim guidance
(Non-food related) Agriculture: summary guidelines and final interim guidance
Forestry: summary guidelines and final interim guidance
Fishing & Hunting (commercial fishing services and for-hire vessels): summary guidelines and final interim guidance
Retail Trade: the curbside and in-store pickup retail summary guidelines and final interim guidance
Manufacturing: summary guidelines and final interim guidance
Wholesale Trade: summary guidelines and final interim guidance

Finally, to reopen, every business is required to have a written “safety business plan” outlining how it will prevent the spread of COVID-19 in the workplace. Businesses may fill out the template (found here) to fulfill the requirement, or may develop their own plan. The plan does not need to be submitted to a state agency for approval, but must be retained on the premises of the business, posted conspicuously, and must made available to the New York State Department of Health or local health and safety authorities in the event of an inspection.

Notably, both essential businesses and non-essential businesses eligible for reopening must comply with the requisite guidance, submit an affirmation, and prepare a safety business plan.

Businesses should also be aware that the state has created avenues for individuals (including customers) to file complaints against a business for failing to comply with the guidance. Individuals may register complaints through a 24/7 hotline as well as online. Employees may also register complaints based on working conditions with the New York Department of Labor.

The State has published FAQs (found here) with further guidance on compliance with these new rules, which includes a way to submit further questions to the relevant regional control room contact.

Employer Takeaways

As New York presses forward with reopening, employers should stay up to date with any changes. While many businesses are understandably eager to reopen, they will need to first ensure: (1) the workplace is located in a region eligible for reopening; (2) the business qualifies as a Phase One entity; and (3) the business is in compliance with the mandatory guidance, submitted the affirmation, and developed a safety plan. Seyfarth lawyers are available to assist employers with ensuring compliance and developing return to work plans as needed.

[1] New York’s essential business and business activity list has detailed an evolving set of state-wide, employment roles that are permitted to open. Businesses and activities that make it onto this list also are required to comply with the guidance, affirmation and business plan directives. In addition, the State has continued to expand the “essential business” designations including where the businesses are outdoors and otherwise are low risk (for instance, landscaping, parks, boating, golf and tennis). Essential business activities are permitted across the state.