New York State Provides Guidance on Phase One Business Reopening

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Phase One of New York state's reopening is underway for several regions as of Friday May 15. Phase One covers businesses in the following industries:

  • Construction;
  • Manufacturing;
  • Agriculture, forestry, fishing, and hunting;
  • Retail trade (for curbside pickup); and
  • Wholesale trade.

Early on Thursday, May 14 2020, the state’s “New York Forward” initiative published reopening guidance for businesses within Phase One. The guidance documents are specific to their respective industries, but contain several common features and requirements, discussed in this Legal Alert. These requirements will likely be applied to all businesses as regions move into the next Phases of reopening.

In an FAQ, Empire State Development confirmed that “essential businesses” which have continued to operate during the pandemic would now be required to comply with the new guidance, regardless of whether they are within a “Phase One” industry.

Restrictions on Physical Presence

In general, reopening workplaces that operate indoors must limit in-person presence to 50 percent of their property’s certificate of occupancy. Depending on industry, supervisors may be exempted from that 50 percent threshold. Further, if a facility has certain “core tasks” that require additional manpower to perform safely—such as supplying critical goods or operating a critical assembly line—more individuals may be present in the facility.

Social distancing of 6 feet is required in all workplaces. If social distancing would make a work task unsafe (certain construction tasks or assembly lines, for example), or if workers will come within 6 feet of one another or visitors, face coverings (masks) must be worn.

Safety Plans Required

Reopening businesses must complete a written Safety Plan that details how the workplace will prevent against the spread of COVID-19. A Safety Plan Template has been made available, though businesses may develop their own plans, too.

The Safety Plan does not need to be submitted to any state agency for approval, but it does have to be posted "conspicuously" within the workplace and kept on file. Businesses are also advised to identify a worksite "monitor" who is charged with ensuring compliance with the Safety Plan.

In general, the Safety Plan identifies the ways that reopened businesses will abide by precautions of our new normal, such as ensuring enough personal protective equipment (PPE) is on-hand, measures to ensure social distancing, and constant disinfecting of surfaces.

Screening

All reopening businesses are required to implement daily "health screening" procedures for all workers and essential visitors entering their workplace. (Guidance specific to retail establishments indicates that “customers” do not need to be screened). At minimum, screening questions should include: (1) whether the individual has been in close contact with anyone who tested positive for COVID-19 or had symptoms of COVID-19 in the past 14 days; (2) whether they have tested positive for COVID-19 in the past 14 days; and (3) whether they have experienced any symptoms of COVID-19 in the past 14 days. Individuals that do not pass the health screen should not be allowed to enter the workplace.

Daily temperature checks may also be included as part of a businesses' screening procedure, but the guidance does not require them as part of a daily health screen. Under the New York Forward guidance: if temperature checks are conducted, employers may not maintain a log of their employees' temperatures. This poses a conflict with the EEOC’s guidance on thermometer checks. As of May 15, 2020, the EEOC’s guidance still states that employers may maintain a log of their employees’ temperature checks, so long as the employer maintains the confidentiality of the information.

Health screening must be carried out in a manner that prevents individuals from clustering too close together. If possible, screening should be conducted remotely, either by telephone or online survey. If health screening is performed on-site, screeners must be adequately trained and provided with appropriate PPE.

Check-in Logs and Cleaning Logs

Businesses must keep a log of every person who passes the health screen and enters the work site (with the exclusion of those individuals that will not have substantial contact with the worksite, such as contactless deliveries). The log should contain enough contact information so that individuals may be traced and notified in the event of possible exposure.

Businesses must also maintain cleaning logs which record when the worksite is cleaned. The log must contain the date, time, and scope of cleaning. In general, businesses are required to properly clean and disinfect their workplaces at least daily or after every shift, and more frequently for high-use areas or items.

Mandatory Reporting of Positive Cases

Employees who are alerted via contact tracing or other means that they have been potentially exposed to COVID-19, or test positive for COVID-19, are required to inform their employer. Employers, in turn, are required to notify their local health department and the State Department of Health about confirmed cases or a "suspected case" of COVID-19 in their workplace.

Employers must take care, however, to maintain employee confidentiality. Employees' specific health conditions should not be discussed among the workforce. At the same time, businesses are also required to take steps to notify individuals of their possible exposure to COVID-19.

Affirmation

After reading through the master guidance, all reopening businesses must sign and submit a "Business Affirmation" that they will comply with the State's reopening guidance.

Next Steps

For all businesses—whether within a Phase One industry or not—the New York Forward guidance is a clear indicator that it is time to prepare your workplace for reopening. At minimum, all businesses should take steps to procure a sufficient supply of PPE, evaluate their physical workplace for social distancing, and review the Template Safety Plan to identify business-specific questions and needs.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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