Seyfarth Synopsis: As part of Governor Cuomo’s New York Forward plan, all regions of the State, except New York City, have begun Phase One of the reopening plan. Additionally, on May 29, Governor Cuomo announced that the North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier regions now qualify for Phase Two. New York State has also issued guidance for “Phase Two” industries. The guidance gives businesses much needed guidance to prepare and plan for reopening.
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. On May 28, 2020, Governor Cuomo issued Executive Order 202.34, continuing New York Pause for New York City, but listing all other regions in the State as qualifying for Phase One reopening. Furthermore, Governor Cuomo announced on May 29, 2020 that five regions (North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier) were cleared to enter Phase Two of reopening.
New York State also 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.
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 and Two. (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.
Notably, both essential businesses and non-essential businesses must comply with the requisite guidance, submit an affirmation, and prepare a safety business plan, even if they have already been open in some capacity. Additionally, if guidance has not yet been published for a particular specific industry that is permitted to reopen, the business should refer to the NY Forward Safety Plan template.
All regions of the state except New York City are now in Phase 1 of reopening. Phase One industries include:
- Agriculture, Forestry, Fishing and Hunting
- Retail (Limited to curbside or in-store pickup or drop off)
- Wholesale trade
For more details, please refer to our prior alert on Phase One Industries.
The North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier regions can now enter Phase Two. The following are the broad categories of businesses listed as part of Phase 2.
- Professional services and offices
- In-store retail
- Administrative support
- Real Estate (to the extent not already permitted)
- Vehicle Sales, rental and leasing
- Hair Salons and barbershops
The guidance expands on the categories above and there are summary guidelines and final interim guidance for each of the following industries:
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. 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.
As Phase Two presses forward, 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.
 EO 202.34 gives business operators and building owners the discretion to deny admittance to individuals who fail to wear a mask or cloth face-covering, as well as requiring or compelling the removal of such individuals. The EO also provides that owners and operators shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive.
 However, the following Phase 2 industries must remain closed: (1) malls (but stores may reopen if they have an external entrance separate from the general mall entrance); (2) dine-in and on-premise restaurant or bar service; (3) large gathering/event venues; (4) gyms, fitness centers, and exercise classes; (5) video lottery and casino gaming facilities; (6) movie-theaters; and (7) places of public amusement.