The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may need.
As New York employers prepare to reopen their workplaces or expand essential operations, safety measures remain one of their top concerns. Based on guidance that the State and other sources have released, here are the key specific steps and some requirements for New York employers to consider:
1) Identify When Businesses in Your Industry Are Ready to Reopen or Expand
Under Governor Cuomo’s New York Forward Plan, various regions of New York will open in one of four Phases. Each Phase permits businesses in different industries to operate. New York State has a comprehensive website explaining the New York Forward Plan. Employers should be careful not to reopen before their region has been given the “green light” to open for their respective industry.
2) Affirm Compliance with Industry Guidelines
The New York Forward website contains both summary and detailed interim guidelines issued by the New York State Department of Health specific to each industry permitted to open. These guidelines contain industry-specific directives on topics such as Physical Distancing, Hygiene and Cleaning, Employee and Visitor Screening, to Communication Plans employers should have in place. These guidelines also reiterate employer requirements to purchase and make available face coverings for their employees. As a condition to reopening, businesses are required to affirm, through an online submission, that they have read and will comply with the directives in the guidance. Each Interim Guidance document contains a link through which employers can submit their affirmation to New York State.
Links to the summary guidelines and the detailed interim guidance for each industry on the New York Forward website, as of June 16, 2020, are available below:
Phase 4: Not Open (Arts, Entertainment, Recreation, Education)
The New York State Department of Health continues to add industry guidance documents to the New York Forward website, so if an employer’s industry is not yet listed in one of the phases above, it is important that employers check back regularly.
Notably, both essential and non-essential businesses in the above industries must affirm compliance with the above guidelines.
3) Create and Post a Safety Plan
New York also requires all businesses – both essential and non-essential – to create and post onsite a Safety Plan outlining how they will comply with the interim guidelines described above. This Safety Plan does not need to be submitted to New York State, but the plan must be posted conspicuously, retained on the premises, and made available to the New York State Department of Health or other local authorities in the event of inspection. New York State has also published a template form which employers may, but are not required, to use to help craft their Safety Plan, available here.
4) Stay Current
After affirming compliance with industry Interim Guidance, and creating a Safety Plan, employers should anticipate that guidance on COVID-19 will continue to change, as health professionals learn more about COVID-19 and its transmission. For instance, guidelines around return-to-work protocols following an employee’s COVID-19 infection or exposure have been modified several times since the beginning of the pandemic. Prudent employers should designate an employee to regularly monitor any developments from the Department of Health, any industry-specific regulating Department (e.g. Department of Agriculture, Department of Buildings), and any relevant for industry association guidance. Employers can then update their Safety Plan, their practices and policies, and their communications with their employees accordingly.
Finally, these are some of New York State’s specific requirements, but employers should also remember that there is guidance from the CDC, OSHA, and many other sources that should be reviewed and considered. In addition, beyond these basic requirements, companies should also consider public and employee-facing policies, protocols and communications, regarding their reopening or expansion plans.