This alert was updated at 11:59 a.m. on 5/15/2020
Governor Cuomo has announced the first phase of industries that can start preparing for the reopening process, including construction in the energy sector. As part of that process, the State has released detailed guidance regarding construction activities, which is part of the first phase of reopening.
Among other things, the State is requiring businesses to prepare and retain on their premises a COVID-19 Health and Safety Plan outlining how their workplace will safely reopen and prevent the spread of COVID-19. Businesses must affirm that they are following these requirements by submitting an online form to the State.
If your region has satisfied, or is close to satisfying, the metrics for reopening, the time for construction employers to assemble their individualized reopening plan is now.
Examples of Requirements
The State has prepared both a summary and master guidance document detailing its requirements for businesses reopening plans. The guidance is organized around three distinct categories: (1) people (social distancing and reducing workplace density); (2) places (protective equipment and cleaning); and (3) processes (screening, testing, and tracking). Some of the highlights include:
These standards apply to both essential and non-essential construction activities for the duration of the COVID-19 public health emergency or until rescinded or amended by the State. A construction business may fill out a template safety plan provided by the State, or develop its own COVID-19 Health and Safety Plan.
With respect to inter-regional travel of workers who may need to travel from one region that is not yet open to a site in a different region that is open, the State has not placed any restrictions on such movement.
Businesses engaged in construction must affirm with the State their compliance with the New York Forward reopening guidance through completion of an online form. This plan does not need to be submitted to a State agency for approval, but must be conspicuously retained on the premises of the business and must be made available to the New York State Department of Health (“DOH”) or local health or safety authorities in the event of an inspection.
In addition to these minimum State standards, construction activity must comply with applicable federal requirements, such as the minimum standards of the Americans with Disabilities Act (“ADA”), Centers for Disease Control and Prevention (“CDC”), Environmental Protection Agency (“EPA”), and United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”).
The State has also created a preliminary FAQ page regarding New York Forward and business reopening that provides additional guidance. The FAQ page directs businesses with immediate questions to contact their regional office of Empire State Development, and provides specific contact information by region.
Governor Cuomo’s NY PAUSE order expires on May 28, but the state will not automatically reopen at that time. Instead, the State’s reopening will proceed in accordance with New York Forward, which is the State’s plan to loosen restrictions gradually statewide. (The full New York Forward Guide can be found here.) New York will reopen on a regional basis as each region meets the four criteria deemed necessary to protect public health. Satisfaction of the criteria are being measured by regional performance against seven metrics. (See the state’s Regional Monitoring Dashboard identifying each region and the metrics they have satisfied.) As of May 14, 2020, only the Finger Lakes, the Mohawk Valley, the Southern Tier, and the North Country have satisfied all seven metrics for reopening.
Once a region reopens, non-essential businesses in certain industry sectors within that region will be permitted to re-open in four phases. Phase 1 encompasses construction, manufacturing, wholesale trade, select retail for curbside pickup only, agriculture, forestry, and fishing. (See the NY Forward website for a list of businesses considered part of Phase 1.)
Businesses that are categorized as construction for purposes of Phase 1 include: building equipment contractors; building finishing contractors; foundation, structure, and building exterior contractors; highway, street, and bridge construction; land subdivision; nonresidential building construction; residential building construction; and utility system construction.
NYSERDA and ESD Guidance on Nonessential Construction
In regions that have not yet met the requirements to reopen, businesses in the energy sector must continue to comply with guidance from both the New York State Energy Research and Development Authority (“NYSERDA”) and Empire State Development (“ESD”) regarding which aspects of construction in the energy industry are considered essential, non-essential, and emergency. The NYSERDA guidance is set to expire on May 28, unless the in-person workforce restrictions are further extended by Executive Order.
Meanwhile, solar energy industry stakeholders are developing operating guidance that, in addition to fit-for-work, social distancing, and compliance with CDC requirements, will include protocols for scheduling work with home or building owners and other site visits, cleaning tools and equipment, and engaging with third party personnel, such as site auditors and delivery drivers. This industry guidance will assist solar developers in developing their individual reopening plans.
Until your region reopens, if your business is categorized as nonessential construction, you will have to continue complying with ESD guidance before reopening.
The reopening process is evolving quickly. Using the standards articulated by Governor Cuomo, as set forth above, businesses hoping to reopen as soon as possible can and should immediately begin the process of formulating and preparing their written COVID-19 Health and Safety Plan to best position themselves for a timely reopening in their respective phases, and for continuation of any “essential business” operations.