What Now? New York Employers Need to Comply With New Legal Guidance as They Plan for a Return to the Office

New York State has at long last begun the process of reopening following broad stay-at-home orders intended to curtail the spread of COVID-19. All ten regions of New York State have started to reopen under the New York Forward initiative, a four-part, phased approach to reopening business and industries in the state by region, as discussed in our prior alert. New York City entered Phase One on June 8, and Phase Two could begin as early as June 22; the rest of the state already is in Phase Two, and some portions have progressed to Phase Three. The process of reopening must be carefully considered, and new policies and practices must be developed and clearly communicated to employees as questions about health and safety will remain at the forefront of conversations for the foreseeable future. Even businesses that were deemed “essential” and have remained open are still required to review and affirm the guidelines discussed below and develop a Business Safety Plan.

What Should New York Employers Do? 

1.  Carefully Review the Guidelines Applicable to Your Sector 

With each new phase, the state has issued specific guidance for the impacted sectors on how to proceed with reopening. For example, sectors that are permitted to open in Phase Two include (with links to the applicable guidance): 

• Office-Based Work
  
  
• Real Estate
  
  
• Commercial Building Management
  
  
• Essential and Phase II Retail Business
  
  
• Vehicle Sales, Leases and Rentals
  
  
• Retail Rental, Repair and Cleaning

 2.  Determine How to Best Implement the Guidelines and Take Appropriate Steps

The guidelines contain a combination of requirements and suggestions for businesses, divided into three categories:

• People: Including physical distancing in the workplace; gatherings in enclosed spaces; workplace activities; and movement and commerce.
  
  
• Places: Including the use of protective equipment in the workplace; hygiene, cleaning and disinfection; phased reopening; and a communications plan.
  
  
• Process: Including screening and testing (including the requirement of mandatory daily health screenings for employees and visitors); and tracing and tracking of COVID-19 cases.

Employers that lease space in office buildings will need to coordinate with building management with respect to particular issues raised in the guidelines, including the proper protocol for the use of common areas, the process for health screenings, the cleaning and disinfection of facilities, and the tracking of any positive or suspected COVID-19 cases within the building.

3.  Affirm the Guidelines

All businesses are required to affirm their compliance with the New York Forward reopening guidance specific to their sector through a portal submission. Employers should designate an individual to complete the form prior to reopening.

4.  Create a Business Safety Plan

Employers are also required to complete a Business Safety Plan outlining how their workplace will prevent the spread of COVID-19. The plan does not need to be submitted to the state, but it must be available on the premises of the business and made available to state and local health and safety officials upon request. While the state has provided a template, businesses are permitted to develop their own safety plan.

5.  Communicate With Your Employees

As employees begin their return to the workplace, many will have questions about the policies and practices that will be in place for ensuring their safety and health, particularly regarding testing and the employer’s protocol for employees who are diagnosed with or are suspected of having COVID-19. We recommend clearly communicating with employees so that they understand what screening procedures will be required, what to expect when they are back in the workplace, what to do if they become sick or have a possible exposure to COVID-19, what behaviors will be required in the office (such as the wearing of masks, social distancing requirements, and modified restroom, elevator and common area procedures), and who to contact with questions or concerns.

6.  Commit to Being Adaptable

We are constantly learning more about COVID-19, which will continue to shape guidance and requirements for some time to come. The return of workers to the workplace will result in new questions and challenges, as we have previously discussed, that will require employers to adapt existing policies to best meet the needs of the workforce and comply with local health and safety guidance.  

*****

We continue to monitor the impact of the COVID-19 pandemic on employers and will provide updates as new developments emerge. For questions or concerns regarding this alert, please contact a member of Kramer Levin’s Employment Law Department.