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Un-PAUSE New York: What Empire State Employers Need to Know About Reopening the Workplace

On April 13, 2020, New York Governor Andrew Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Delaware Governor John Carney, and Rhode Island Governor Gina Raimondo announced the creation of a regional multistate coalition to coordinate and work together to safely reopen the economy and bring employees back to work. Following the announcement, Massachusetts Governor Charlie Baker also announced that Massachusetts had joined the coalition. The multistate coalition is “comprised of one health expert, one economic development expert and the respective Chief of Staff from each state [and] will work together to develop a fully integrated regional framework to gradually lift the states’ stay at home orders while minimizing the risk of increased spread of the virus.”

It is anticipated that relaxing social distancing measures and reopening businesses will increase the risk of COVID-19 spread. Therefore, Governor Cuomo’s first principle in reopening is “do no harm,” meaning “don’t let that infection rate go up.” To achieve this end, Governor Cuomo extended “NYS on PAUSE” until 11:59 p.m. on May 15, 2020, which requires, among other things, that all nonessential businesses statewide remain closed and nonessential gatherings of individuals of any size for any reason (e.g., parties, celebrations, or other social events) be canceled or postponed.

Despite the extension of “NYS on PAUSE,” on April 15, 2020, and April 16, 2020, Governor Cuomo introduced a strategy to “Un-PAUSE” by reopening businesses in phases. Gradually reopening businesses allows the state to evaluate whether reopening workplaces continues to “do no harm,” by tracking the numbers of new COVID-19 cases, along with other key indices and measures, to assess the impact of reopening businesses. Businesses deemed “more-essential,” with a low risk of infection, will reopen first. Next, businesses deemed “more-essential,” with a higher risk of infection, and businesses deemed “less-essential” with a low risk of infection will reopen gradually (e.g., operating at reduced capacity—25 percent, 50 percent, and 75 percent respectively). Finally, businesses in “less-essential” industries with a higher infection risk will reopen only with serious precautions, such as restricting vulnerable employees or customers, plus adding antibody and diagnostic testing.

While New York State has yet to unveil its industry-specific risk analysis, the Johns Hopkins Center for Health Security published Public Health Principles for a Phased Reopening During COVID-19: Guidance for Governors, which includes the below risk assessment for various “‘nonessential’ businesses.” Though this report has not been adopted by New York State and is not to be relied upon in making any final decisions regarding reopening, it is a helpful resource for “nonessential businesses” that are beginning to assess risk in the workplace and develop reopening strategies.

Category Contact Intensity Number of Contacts Modification Potential
Restaurants Medium Medium Medium
Bars High High Medium
Salon, spas, and other personal care industries Medium/high Low Medium
Retailers Low Medium Medium
Shopping malls Low Medium Medium
Gyms/fitness studios Medium Medium Medium
Theaters, museums, and other indoor leisure spaces Medium High Medium
Outdoor large venues (concerts, sports) High High Medium
Indoor large venues (concerts, sports) High High Low
  • The Johns Hopkins Center for Health Security defines “contact intensity” as “a function of contact type (ranging from close to distant) and duration (ranging from brief to prolonged). Low contact intensity activities are interactions that are brief and fairly distant, like walking past someone in a shop. High contact intensity activities involve prolonged close contact, like sharing a dormitory. Medium contact intensity activities fall between these 2 poles, like sharing a meal in a seats that are separated by several feet.” The report rates “contact intensity” as “either low, medium, or high.”
  • The Johns Hopkins Center for Health Security defines “number of contacts” as “the approximate number of people in the setting at the same time, on average. A higher number of contacts is presumed to be riskier.” The report assesses “the number of contacts as either low, medium, or high.”
  • The Johns Hopkins Center for Health Security assesses “modification potential,” which is “the degree to which mitigation measures can buy down those risks[.]” The “modification potential” provides “a qualitative assessment of the degree to which activities can be modified to reduce risk.”

Consistent with Governor Cuomo’s plan to “Un-PAUSE” New York, the Johns Hopkins Center for Health Security concluded that “[b]usinesses and sectors that have low contact intensity, low numbers of contacts, and high ability to modify operations in ways that diminish the potential to spread will be safer to reopen sooner and more fully than those with high contact intensity, high contacts, and the inability to modify or mitigate operations.”

Furthermore, on April 21, 2020, recognizing that regions of New York have been impacted by COVID-19 differently, Governor Cuomo expanded upon New York State’s reopening strategy by announcing that “the state will take a regional approach to reopening and will make decisions on which counties and regions to open and when to open them based on the facts and data specific to that area.” To assist with reopening efforts, Governor Cuomo appointed Lieutenant Governor Kathy Hochul to oversee the public health and reopening strategy for Western New York; Robert Duffy, former lieutenant governor of New York, will be a volunteer special advisor to coordinate the Finger Lakes region strategy.

While the regional and multistate coalition analysis for reopening businesses is underway, employers can start to plan for a “new normal” in their workplaces. There will be no “one-size-fits all” guide to reopening. Employers will assess their businesses to determine what mitigation measures are required to safely reopen workplaces and reduce the risk of spreading the infection between employees and/or customers. Additionally, employers may have to implement different reopening plans and timelines for different locations or business units. Empire State employers with operations in New York City, where employees take public transportation, will have different considerations from upstate employers whose employees primarily commute by car.

The  below provides some practical points for Empire State employers preparing for the unique challenges of reopening workplaces in a safe and effective manner. The considerations offered are based upon currently available information and may be updated or supplemented by additional guidance from Governor Cuomo or the multistate coalition. Moreover, the governor as well as federal, state, or local agencies, may issue additional regulations detailing specific actions or necessary steps to take prior to reopening.

Considerations for New York State Employers Reopening Workplaces

New York State employers can start developing reopening plans that are specific as to industry, employer, and region. Well-designed plans may help reduce the spread of COVID-19, protect employees, and limit employer liability. With the following preliminary considerations as background, employers may want to begin assessing which changes are necessary for their workplaces. Employers can start by evaluating the following:

  1. Commuting Factors
  • Consider analyzing employee commutes and whether such commutes require employees to take public transportation.
  • Consider developing plans to optimize safer transportation to the workplace that potentially include
    • staggered shifts to allow employees to take less crowded subways or buses; and
    • the provision of disposable face coverings and gloves for employees who use public transportation that can be safely disposed upon arrival to the workplace.
  • Consider relaxing tardiness policies to allow employees to wait for less crowded public transportation or less crowded elevators.
  1. Workplace Elements
  • Consider evaluating the workplace to determine whether the business has an inherently low or high risk of infection by
    • measuring the density of the workplace on a typical day and determining whether there are prolonged close contacts; and
    • assessing the need for modifying the workplace by (1) reducing office density, such as by extending remote work policies for certain categories, units, or groups of employees, (2) eliminating or limiting in-person meetings, and (3) implementing staggered shifts or alternate workdays in the workplace.
  • Consider evaluating whether to close common areas such as breakrooms and cafeterias and whether to take additional steps, such as
    • closing or limiting the number of employees in breakrooms by staggering meal periods and breaks;
    • closing cafeterias or implementing strict mitigation measures; and
    • removing shared snacks, exposed foods, or cutlery stations where employees may touch multiple pieces of cutlery at one time.
  • Consider evaluating whether to limit or cease work-related travel.
  1. Mitigation Measures
  • Consider identifying necessary mitigation measures to limit the risk of COVID-19 spread in the workplace and preparing social distancing guidelines, which may include
    • physical distancing—reducing the number of employees physically present in the workplace, ensuring that workspaces are at least six feet apart, and leveraging technology to limit employee interaction;
    • physical barriers—erecting partitions between workspaces or employees, or between customers and employees;
    • face coverings—providing employees with face coverings in the workplace and training employees on the safe and proper handling and wearing of face coverings (New York State requires essential businesses to provide face coverings at no cost to employees who directly interact with the public during the course of their work); and
    • notice postings—posting notices to employees and customers regarding mitigation measures such as prohibiting congregating, maintaining social distancing of at least six feet, wearing face-coverings over noses and mouths, and washing hands.
  • Consider preparing social distancing policies and training that set forth the company’s mitigation measures, employee responsibilities (including complaint reporting procedures), and consequences for failing to follow the guidelines.
  1. Existing Policies and Practices
  • Consider evaluating current policies and practices including, but not limited to
    • sick leave policies to provide job-protected paid or unpaid leave for sick or symptomatic employees;
    • tardiness or absentee policies to effectuate safe commutes to work without penalty, so that employees can wait for a less crowded subways, buses, or elevators (see “Commuting Factors” above);
    • remote-work policies to prepare for possible long-term or permanent remote work for some employees;
    • harassment policies to prohibit harassment or discrimination based on COVID-19–positive test results; and
    • leave and accommodation policies to ensure employees in need have access to leaves or accommodations.
  1. Routine Cleaning Practices
  • Consider conducting deep cleanings prior to returning employees to the workplace.
  • Consider developing workplace practices for routinely cleaning and disinfecting all high-touch surfaces, such as workstations, keyboards, telephones, remote controls, desks doorknobs, and other work equipment, and providing cleaning supplies and disposable wipes to employees for each use.
  • Consider discouraging workers from using other workers’ phones, desks, offices, or work tools and equipment, when possible, and if necessary, cleaning and disinfecting them before and after use.
  • Consider providing hand sanitizer.
  1. Reporting COVID-19 Cases
  • Consider developing a comprehensive policy and procedure for employees to confidentially and comfortably report positive COVID-19 test results or close contacts who may have tested positive. Consider including in the policy a reporting procedure and protocol for reentering work following a COVID-19 diagnosis or symptomatic period consistent with relevant Centers for Disease Control and Prevention (CD) or local health department guidance.
  • Consider conducting manager training for handling reports of COVID-19 cases or symptoms.
  1. Screening Protocols
  • Consider evaluating whether to implement regular screening protocols for employees, customers, clients, or other workplace visitors.

Conclusion

Governor Cuomo is expected to continue to provide updated guidance and executive orders as the multi-state coalition issues recommendations to lift workplace restrictions and propose policies governing workplace reopenings.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 114

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About this Author

Stephanie Aranyos, Ogletree Deakins Law Firm, Employment and Litigation Attorney
Of Counsel

Stephanie Aranyos serves as of-counsel in the firm’s New York City office. Ms. Aranyos advises and represents employers in a broad spectrum of employment and labor matters involving Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the National Labor Relations Act as well as many other federal and state laws affecting employment and labor. Ms. Aranyos frequently represents employers before federal and state courts and before administrative agencies on matters,...

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