Yesterday, New York State Governor Andrew Cuomo outlined guidelines for when Empire State businesses can reopen and return to “in-person” operations.  Under the Governor’s plan, reopenings will be determined on a region-by-region and industry-by-industry basis.  And when businesses do ultimately reopen, they will be required to adopt a plan to protect employees and consumers, make the physical work space safer, and implement specific safety precautions.  Below we will delve into the Governor’s staggered, phased approach to reopening New York.

Specific criteria to determine regional readiness for reopening

In terms of the metrics for evaluating potential regional reopenings, Governor Cuomo stressed the following core factors that the state will monitor to determine if a region can reopen:

  • New infections:  Based on CDC guidelines, regions must have at least 14 days of decline in total net hospitalizations and deaths on a three-day rolling average.  Regions with few COVID-19 cases cannot exceed 15 net new total hospitalizations or five new deaths on a three-day rolling average.  In order to monitor the potential spread of infection in a region, the region must have fewer than two new COVID-19 patients admitted per 100,000 residents per day.
  • Health care capacity:  Every region must have the health care capacity to handle a potential surge in cases.  Regions must have at least 30% total hospital and ICU beds available.  This is coupled with the new requirement that hospitals have at least 90 days of personal protective equipment (PPE) stockpiled.
  • Testing regimen:  Regions must implement a testing regimen that prioritizes symptomatic persons and individuals who have come into contact with a symptomatic person, and conducts frequent tests of frontline and essential workers.  Each region must have the capacity to conduct 30 diagnostic tests for every 1,000 residents per month.  The regions must maintain an appropriate number of testing sites to accommodate its population and must fully advertise where and how people can get tested.  The region must also use the collected data to track and trace the spread of the virus.
  • Tracing system:  Regions must have a baseline of 30 contact tracers for every 100,000 residents, and additional tracers based on the projected number of cases in the region.
  • Isolation facilities:  Regions must present plans to have rooms available for people who test positive for COVID-19 and who cannot self-isolate as part of the reopening process.

The Governor also emphasized regional coordination as part of the reopening process.  Regions must, for instance, coordinate the reopening of schools, transportation systems, testing, and tracing with other surrounding regions.  As part of a reopening plan, regions should also reimage tele-medicine and tele-education, and must monitor businesses and regional indicators during the phased reopening, including hospital capacity, rate of infection, and PPE burn rate.  Regions must, additionally, continue to ensure protections are in place for essential workers.  (Here is a map of New York’s 10 regions.)

Businesses within each region will reopen in staggered phases

The Governor also announced that, when a region does ultimately satisfy the above criteria and is eligible to reopen, businesses and industries within that region will reopen in four staggered phases.  To that end, businesses considered “more essential” with inherent low risks of infection spreading in the workplace and to customers will be prioritized for reopening, followed by other businesses considered “less essential” or those that present a higher risk of infection spread.

More particularly, businesses within each region will reopen in phases as follows:

  • Phase one
    • Construction
    • Manufacturing and wholesale supply chain
    • Select retail using curbside pickup only
  • Phase two
    • Professional services
    • Finance and insurance
    • Retail
    • Administrative support
    • Real estate and rental leasing
  • Phase three
    • Restaurants and food service
    • Hotels and other accommodations
  • Phase four
    • Arts, entertainment, and recreation
    • Education

The Governor also announced that, at least for the time being, regions will not be permitted to reopen attractions or businesses that would draw a large number of visitors from outside the local area.

All reopened businesses must implement specific safety precautions

Lastly, the Governor announced that, as part of their reopening, every business and industry must have a plan to protect employees and consumers, make the physical work space safer, and implement processes that lower the risk of infection in the business.  Relatedly, the Governor outlined specific safety precautions that every New York business must implement upon reopening to help lower the risk of spreading the virus.  Specifically, businesses will be required to:

  • Adjust workplace hours and shift design as necessary to reduce density in the workplace
  • Enact social distancing protocols
  • Restrict non-essential travel for employees
  • Require all employees and customers to wear masks if in frequent contact with others
  • Implement strict cleaning and sanitation standards
  • Enact a continuous health screening process for individuals to enter the workplace
  • Continue tracking, tracing, and reporting of cases
  • Develop liability processes

This is undoubtedly not the final guidance that Governor Cuomo will issue regarding business reopenings, and many more details will likely be forthcoming within the next few days and weeks.  Reed Smith’s attorneys are monitoring New York’s actions in response to COVID-19 and their related impact on employers.  If you have any questions on how to ensure compliance with the state’s many new regulations, our team is available to assist.