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Legal Update

Jun 25, 2020

School’s Back in Session for Universities This Fall: New York Issues Detailed Guidance for Higher Education Institutions, as well as Low Risk Arts & Entertainment and Media Production, as the State Looks Forward to Phase Four and Beyond

By: Lorie E. Almon, Meredith-Anne Berger, Anne R. Dana, Dov Kesselman, Samuel Rubinstein, and Glenn J. Smith
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Seyfarth Synopsis: As part of Governor Cuomo’s New York Forward plan, New York State has issued guidance for “Phase Four” industries,” which include higher education, low-risk outdoor arts & entertainment, low-risk indoor arts & entertainment, and media production. The guidance gives these businesses the ability to prepare and plan for reopening. Additionally, effective June 25, all travelers coming from states with increasing COVID-19 cases are required to quarantine for 14 days upon arrival in the Tri-State Area (NY, NJ, CT).

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.”  While essential businesses and business activities may remain open subject to the essential business guidelines, non-essential businesses may only reopen subject to phases.[1] 

For purposes of Phase Four, New York State published guidelines for Higher Education, Low-Risk Outdoor Arts & Entertainment, Low-Risk Indoor Arts & Entertainment, and Media Production.  While currently there are no regions in the State at Phase Four, the guidance will be critical for those planning their re-openings.  Governor Cuomo announced that the Central New York, Finger Lakes, Mohawk Valley, North Country and Southern Tier regions are on track to Enter Phase Four of reopening this Friday, June 26.

Notably, as of this writing, based on comments by Governor Cuomo’s budget director, it appears that public areas of malls, movie theaters, and gyms, will not be permitted to reopen in Phase Four. [2]  It is unclear whether malls, movie theaters, and gyms will be permitted to reopen at later time in Phase Four or if the Governor will institute a Phase Five which allows such businesses to open with unique restrictions.

Before reopening, every industry 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 category listed in Phase One, Two, Three, and Four.  (The guidance is not identical for each category, 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 they have read and agree 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 also be found here.

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 use the template (found here) to fulfill the requirement, or may develop their own tailored plan.  The plan does not need to be submitted to a state agency for pre-approval, but must be retained on the premises of the business, posted conspicuously, and made available to the New York State Department of Health or local health and safety authorities upon request.  Higher education institutions, however, must file their safety business plan with the Department of Health, which may then require changes.

Phases One, Two, and Three

New York City and Long Island are the last two regions to begin opening, with New York City now in Phase Two of reopening, and Long Island now in Phase Three as of June 24, 2020.  The rest of the regions are now in Phase Three of reopening.

For more details, please refer to our prior alerts on Phase One Industries, Phase Two Industries, and Phase Three Industries.

Phase Four

No regions are currently in Phase Four reopening.  Phase Four industries include:

  • Higher Education – includes community and junior colleges, universities, graduate and professional schools, medical schools, and technical schools.
  • Low-Risk Outdoor Arts & Entertainment – includes outdoor zoos, botanical gardens, nature parks, grounds of historic sites and cultural institutions, outdoor museums, outdoor agritourism/agricultural demonstrations, and other related institutions or activities.[3]
  • Low-Risk Indoor Arts & Entertainment – includes indoor museums, art galleries, historical sites, aquariums, and other related institutions or activities.[4]
  • Media Production – includes all activities undertaken in motion picture, music, television, and streaming productions on set, on location, or at any production or recording site.

As in the prior phases, all Phase Four industries have applicable summary guidelines and final interim guidance.  Links to each can be found below.

All Phase Four industries are subject to additional NY State specific guidance concerning activities such as offices, food services, or retail, and as is referenced and linked in the final interim guidance.

Higher Education

The guidance for higher education is of special interest as many colleges, universities, and schools look forward to reopening their campuses to students.  Each institution must develop and submit a plan that, at a minimum, covers:

  • Reopening of the campus (plans for restarting campus operations including student, faculty, and staff return). Considerations include: capacity, PPE, testing, residential living, operational activity, restart operations, extracurriculars, vulnerable populations, and hygiene, cleaning and disinfection.
  • Monitoring of health conditions (policies to track health conditions on campus). Considerations include: testing responsibility, testing frequency and protocols, early warning signs, tracing, and screening.
  • Containment of potential transmission of the virus (plans for how to respond to positive or suspected cases as well as preventative policies and practices). Considerations include: isolation and quarantine, students confirmed or suspected to have COVID-19, hygiene, cleaning, and disinfection, and communications.
  • Shut down of in-person operations on the campus, if necessitated by widespread COVID-19 transmission (contingency plans for decreasing on-campus activities and operations and/or closing the campus). Considerations include: operational activity, move-out, and communications.

Significantly, unlike other industries, higher education institutions are required to file their plans with the Department of Health, who can then require such higher education institutions to modify their plans to ensure compliance with this guidance.

Like other industries, higher education institutions are still required to affirm that they have read and understand the guidance.

Finally, higher education institutions need to be aware that a variety of their activities should follow the relevant “industry specific” guidelines provided by the Department of Health.  By way of example, operations of dining halls and other on-campus food services must follow the “Interim Guidance for Food Services during the COVID-19 Public Health Emergency”; research activities must follow the “Interim Guidance for Higher Education Research during the COVID-19 Public Health Emergency”; administrative functions must follow the “Interim Guidance for Office-Based Work during the COVID-19 Public Health Emergency”; campus bookstores and other retail locations must follow the “Interim Guidance for Retail Business Activities during the COVID-19 Public Health Emergency.”

Mandatory Quarantine for Travelers and Residents Returning to the Tri-State Area

Governor Cuomo announced that effective June 25, 2020, at midnight, travelers coming from eight states with increasing COVID-19 cases, including: Alabama, Arizona, Arkansas, Florida, North Carolina, South Carolina, Texas and Utah.  Any state which meets the threshold of “higher than 10 per 100,000 residents over a 7-day rolling average or a state with a 10% or higher positivity rate over a 7-day rolling average” in the future will also be required to quarantine accordingly, according to the Governor’s Press Release and Executive Order No. 205.  Neighboring states Connecticut and New Jersey are imposing similar requirements, in solidarity.  Potential violations may lead to a judicially mandated quarantine and civil penalties up to $10,000.

These restrictions are sure to pose difficulties for employers whose businesses require travel, as well as employees who may have been working remotely from other states during the pandemic.

Reporting Alleged Violations

Businesses should 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.  Failure to comply with the State’s guidance can expose businesses to fines, investigations and potential civil liability.  Thus, employers should be sure they are in compliance with the guidance.

Employer Takeaways

As regions enter Phase Four, employers should begin to prepare their reopening plans and stay up to date with any changes.  Seyfarth lawyers are available to assist employers with ensuring compliance and developing return to work plans that will support a safe and successful return to the workplace.

 

[1]              New York State has clarified that the business reopening guidance applies to non-essential businesses in regions that will be permitted to reopen, essential businesses throughout the state that had remained open, and commercial and recreational activities that have been permitted to operate statewide with restrictions.

[2]              Retail stores located in malls without their own external entrance(s) may operate via curbside pickup in Phase 1 and 2 providing purchased items to customers at or near the general mall entrance and any stores with their own external entrance(s) separate from the general mall entrance (e.g. strip malls, anchor tenants), may open for all in-store retail activities in Phase 2.

[3]              The guidance provides examples of higher-risk outdoor arts and entertainment activities that remain closed, including places of public amusement (e.g., amusement parks, water parks, carnivals), concerts, or performing arts in excess of the non-essential gathering limit in effect for the particular region.

[4]              The guidance provides examples of higher-risk indoor arts and entertainment activities that remain closed, including places of public amusement (e.g., arcades, bowling alleys), casinos, concerts, movie theaters, performing arts, or other theatrical productions.