To help our clients navigate the coronavirus (COVID-19) outbreak, Keane & Beane is providing Legal Alerts on a variety of issues as they are presented. The information contained in this Legal Alert is applicable as of today, May 18, 2020, please be aware that guidelines may change and should be reviewed again as each region reopens.
New York is finally starting to open up, but doing so carefully through a calculated phase-by-phase plan. As of May 15, 2020, certain regions have been allowed to move forward with Phase 1 of NY Forward Reopening Plan. The New York Forward Reopening Advisory Board has generated Reopening Guidelines and safety plan templates for businesses that will be reopening during Phase 1. Each region will be permitted to reopen according to the Guidelines once the region meets the benchmark standards to permit reopening. Once permitted to reopen, there must be a minimum two (2) week period at each phase before a region is permitted to move on to the next phase. The phase-in plan prioritizes businesses that have a greater economic impact and a lower risk of infection. In preparation for the reopening of Westchester County and the Mid-Hudson Region, Keane & Beane will issue a series of Legal Alerts to provide information for each phase of the reopening. In addition to our Legal Alerts, we will also be hosting a webinar on Tuesday, May 26, 2020 to discuss the different aspects of the NY Forward Plan. Please contact Nicholas M. Ward-Willis or Eric L. Gordon for more information.
Businesses permitted to reopen during Phase 1 include construction, manufacturing and in-store and curbside pickup for some retailers. In order to determine if your business qualifies and is permitted to reopen, refer to the NY Forward List describing Phase 1 businesses. Summary guidelines have been published for each of these industries outlining both mandatory requirements and recommended best practices which include physical distancing, protective equipment, communication, health screening and cleaning and hygiene.
Examples of some of the mandatory requirements include physical distancing of 6 feet if possible, providing face coverings to employees at no charge, regular cleaning and disinfecting of work spaces, training personnel and posting signage about protocols and implementing mandatory health screening assessments for all employees before commencing work. Examples of recommended best practices include reducing bi-directional traffic in interior spaces by posting arrows on floors, permitting employees to work from home when possible, increasing outdoor air ventilation and performing health screening remotely.
Private construction businesses and municipalities should review the construction summary guidelines and apply them to each of their current and future construction projects. Similarly, guidelines should be reviewed and implemented for manufacturers and retailers.
Essential businesses currently in operation are also required to comply with the industry specific standards in addition to the existing essential business safety guidelines. It is important that employers prepare their employees and make them aware of the requirements for reopening and maintaining safe work practices.
Businesses will also be required to certify that they have reviewed the guidelines and requirements and ensure compliance. This will require the submission of a certification form affirming that each business has read the Interim Guidance for Curbside and In-Store Pickup Retail Business Activities for their industry and agree to comply with the State’s reopening guidelines. The Interim Guidance Form can be filled out and submitted online.
In addition to the summary guidelines and certification of compliance, all businesses (including essential businesses) must create a written safety plan outlining how it will prevent the spread of COVID-19 in the workplace. For ease, NYS has provided a template safety plan. Businesses are not required to submit the safety plan to NY Forward, but must maintain the safety plan on premises and make it available for inspection by the New York State Department of Health or any other local health or safety authorities in the event of an inspection.
Businesses must comply with the applicable guidance requirements and will not be permitted a waiver for any reason. Any business that is unable to meet the requirements will not be permitted to reopen. Governor Cuomo created the New York State PAUSE Enforcement Assistance Task Force to assist local authorities with enforcement of Executive Orders and ensure that all restrictions on business operations and activities during the COVID-19 pandemic are followed. Individuals can report misconduct by filing a complaint regarding the operation of businesses at any time by filling out and submitting an online Form to the NY PAUSE Enforcement Assistance Task Force. Complaints are reviewed by a team of investigators from multiple state agencies and then referred to local authorities designated by county leaders. The investigators also provide guidance regarding available civil and criminal enforcement tools to assist local authorities in responding to alleged violations.
Employees can also report employers to the Department of Labor for several reasons including being forced to work when sick, over the age of 70 or for having underlying illness; requiring persons to be on site when a job can be performed at home; threats or termination for reasons related to COVID-19; and failing to pay COVID-19 benefits or sick leave. Complaints can be submitted online.
Each business that is able to reopen during Phase 1 should review the guidelines, prepare their businesses to reopen by obtaining the proper equipment and supplies and develop a safety plan.
If you have any questions or concerns about this legal alert, the applicability of Phase 1 and its requirements or for assistance with this topic, please feel free to contact Nicholas M. Ward-Willis or Eric L. Gordon or any other attorney in our various Practice Areas.