Returning to Work, a Moving Target: New York State Updates and New York City Issues Guidance as New York City Enters Phase Two

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Seyfarth Synopsis: Earlier this past week, New York State updated its guidance to incorporate by reference the Department of Health’s “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure” as well as other changes.  In addition, New York City issued its own set of Q&A in preparation for Phase Two reopening, which occurred on June 22. 

New York Forward

As discussed previously, Governor Cuomo’s reopening plan -- titled “New York Forward” -- is set to gradually replace the state’s stay-at-home directive known as “New York Pause.”  While essential businesses and business activities may remain open subject to the essential business guidelines, non-essential businesses may only reopen subject to phases.  Both, however, must now comply with the industry specific guidance. New York City, which was the last remaining region to qualify, entered Phase Two yesterday.

Notably, last week, all of the New York Forward industry specific guidance was updated.  While much of the guidance remains similar, there are certain requirements that have been removed and/or revised. For example, the requirement to receive a verification of suitability for occupancy from building engineers before occupants can return to a building that has remained opened was scrapped in the updated guidance for commercial building management. The biggest change, which occurred across every industry, is explained below.

Department of Health Guidance

On May 31, the New York State Department of Health (DOH) issued its “Interim Guidance for Public and Private Employees Returning to Work Following COVID-19 Infection or Exposure.”  One of the key features in this guidance is that a close contact is considered to be someone who is within 6 feet of an infected person for at least 10 minutes.  The CDC, however, defines close contact as an individual who is within 6 feet of an infected person for at least 15 minutes.  Additionally, the duration of the self-quarantine or isolation period is different for close contacts.  Under the DOH guidance, if a close contact is experiencing COVID-19 related symptoms, they may return to work upon completing at least 10 days of isolation from the onset of symptoms; alternatively, if a close contact is not experiencing symptoms, they may return to work upon completing 14 days of self-quarantine.  The CDC guidance, on the other hand, says that a close contact that is not showing any symptoms should stay home until 14 days after the last exposure; as for a close contact that is showing symptoms, their isolation period continues until all requirements are met: (1) 3 days with no fever; (2) Respiratory symptoms have improved (e.g. cough, shortness of breath); and (3) 10 days since symptoms first appeared.  Employers should consider using the more conservative guidelines in an abundance of caution. Otherwise, the DOH guidance is essentially consistent with that of the CDC.

The DOH guidance is now referenced in all of the New York Forward industry specific guidance.

New York City Restart

Not to be outdone, New York City issued its own “COVID-19: RESTART Guidance for Businesses.”  While New York City’s guidance largely repeats the state guidance, internally referencing the State guidance, in certain areas the City guidance goes above and beyond the state guidance.  For example, under the New York Forward plan, employers need to conspicuously post completed safety plans on site.  Under the New City RESTART, not only do employers have to post the plan, but employers are encouraged to distribute the plan to their employees and conduct training on COVID-19 safety protocols where there is a mechanism for employees to ask questions and raise concerns.  In addition, New York City stated that inspectors will be visiting businesses to confirm compliance.  At this point, it is unclear whether the City’s guidance is preempted by the New York Forward plan.

In addition, the City also published resources for employers, including FAQs and template forms.

Employer Takeaways

New York City employers should review their reopening plan to ensure that they are following both the New York State and New York City requirements.  The guidance in this area is evolving on a daily, if not hourly, basis, and employers should do their best to remain in compliance. Seyfarth lawyers are available to assist employers with developing return to work plans that will support a safe and successful return to the workplace.