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On April 28, 2020, New York State Governor Andrew M. Cuomo announced a phased plan to reopen New York. Each region of the state – Capital Region, Central New York, Finger Lakes, Mid-Hudson Valley, Mohawk Valley, New York City, North Country, Long Island, Southern Tier and Western New York – must meet certain metrics in order to be approved for each phase of the reopening plan. Those metrics include a 14-day decline in the hospitalization rate, at least 30% of hospital and ICU bed availability after elective surgeries resume, and a testing regimen that prioritizes symptomatic persons, individuals who have come into contact with a known COVID-positive person, and frontline and essential workers.

Below we provide a summary of the phases and guidelines that businesses must follow as their respective regions begin entering each stage of phased reopening.

What are the Phases of Reopening?

Each phase covers certain industries that will be required to follow state guidelines that include mandatory and recommended elements.

Phase One: All regions have been approved for Phase One reopening. Businesses in the following industries may reopen:

1. Construction
2. Agriculture, Forestry, Fishing & Hunting
3. Retail Trade
4. Manufacturing
5. Wholesale Trade
6. Higher Education Research

Phase Two: All regions except New York City have been approved for Phase Two reopening, which include the following types of businesses:

1. Offices
2. Real Estate
3. Non-essential retail
4. Vehicle sales, leases, and rentals
5. Commercial building management
6. Hair salons and barbershops
7. Outdoor and take-out/delivery food services

**There are indications New York City may receive permission to enter Phase Two end of June or early July 2020.

Phase Three: Central New York, Finger Lakes, Mohawk Valley, North Country, and Southern Tier have been approved for Phase Three reopening. Businesses in Phase Three include the following:

1. Restaurants and food services
2. Personal care, such as tattoo and piercing and massage parlors

Phase Four: Phase Four is not open. When it does open, businesses in the following industries may reopen:

1. Arts
2. Entertainment
3. Recreation
4. Education

What Must Businesses Do Prior to Reopening?

Businesses do not need approval or confirmation from any state agency to reopen. However, prior to reopening, all New York businesses, including those previously allowed to open as “essential,” must follow comprehensive, industry-specific reopening guidelines and phased reopening rules. Among other things, businesses must do the following:

1. Written Safety Plan: Prepare, distribute and post a written Safety Plan in the workplace and retain onsite at all times.
2. Certify Compliance: Have its owner or agent fill out and submit an online form with the state to affirm business compliance with the applicable reopening guidance.

While the guidelines vary and are highly-industry specific, there are five overlapping mandatory categories (with some variations) in all of the guidelines, which businesses must follow:

1. Physical Distancing: This includes maintaining social distancing, limiting indoor workforce presence, posting social distancing markers, and limiting in-person gatherings.
2. Protective Equipment and Measures: This includes providing employees with face coverings at no cost, limiting the sharing of objects (e.g. cash registers), requiring the cleaning of face coverings, and training staff on appropriate personal protective equipment donning and doffing procedures.
3. Hygiene, Cleaning and Disinfection: This includes handwashing protocols, regular cleaning and disinfection of the workplace, and providing and maintaining hand hygiene stations.
4. Communication: This includes training personnel on new protocols, maintaining a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the work site or area, and affirming online that the business’s owners or agents have reviewed the industry guidelines,
5. Screening: This includes implementing mandatory health screening assessments (such as questionnaires and temperature checks) before employees begin work each day and for essential visitors (but not customers), requiring employees who are sick to stay home or return home if they become ill at work, and requiring employees who test positive for COVID-19 to complete a 14-day quarantine before returning to work.

The list above is not exhaustive, and all of the mandatory elements will depend on the type of industry. Businesses should be aware that some industries may be required to follow more than one guideline prior to reopening.

What Other Guidance Should Businesses Keep In Mind When Reopening?

Businesses should also keep in mind federal guidelines issued by the Centers for Disease Control and Prevention (“CDC”), the Department of Health and Human Services (“HHS”), and the Occupational Safety and Health Administration (“OSHA”). For example, the New York State’s reopening guidelines commonly refer to CDC workplace safety guidance, while OSHA guidance advises companies to develop an Infectious Disease Preparedness and Response Plan that can help guide protective actions against COVID-19.

Businesses must be prepared to take measures to comply with the state and federal guidelines in order to avoid potential civil (and possibly criminal) penalties, promote a safe and healthy workplace, and protect themselves against liability for potential negligence or other types of tort claims due to spread of infections in the workplace.

If you have any questions regarding this Alert, please contact the authors, Bran Noonan, partner in our New York City and Berkeley Heights offices at bnoonan@fordharrison.com, and Mohammad Shihabi,  counsel in our New York City office at mshihabi@fordharrison.com. Of course you may also contact the FordHarrison attorney with whom you usually work.

FordHarrison is closely monitoring COVID-19 developments including associated federal and state legislation and reopening guidance. The firm has implemented continuity plans to allow our lawyers and staff to work remotely in a technologically secure environment when necessary, ensuring continuity of our operations and uninterrupted service to our clients. We are following all CDC guidelines and state and local laws as applicable. We are committed to ensuring the health and welfare of our clients, employees, and communities while continuing to provide our clients with the highest quality service. Please see our dedicated Coronavirus Taskforce and Coronavirus – CARES Act pages for the latest FH Legal Alerts and webinars on COVID-19, the new American workplace, workplace-related provisions of the CARES Act, as well as links to governmental and industry-specific resources for employers to obtain additional information and guidance. For more information or to be connected with a Coronavirus Taskforce or CARES Act attorney, please contact clientservice@fordharrison.com.