On Monday, June 22nd, New York City –reopened to Phase Two businesses – including offices (including law firms, real estate and many other professional services). New York City is the final region in New York State to have entered this phase which comes three months after the closure of all non-essential businesses under the “New York State on Pause.” This is part of Governor Cuomo’s plan, called “New York Forward,” to re-open non-essential businesses in New York State on a regional and industry-specific basis as each region meets the criteria necessary to protect public health.
Although this is certainly a positive development, reopening offices under the New York Forward program will not be back to business as usual. In connection with reopening, Phase Two businesses are required to, among other things, adopt industry-specific guidelines put forth by NYS (the “Guidelines”) and to adopt and conspicuously display a written safety plan that is designed to protect employees and visitors, make the physical workspace safer and implement processes that lower risk of infection in the business. The Guidelines impose certain mandatory requirements, as well as recommended best practices, covering the following areas: screening, physical distancing (social distancing and limiting occupants to no more than 50% of maximum occupancy of a particular area), personal protective equipment (“PPE”) (e.g., masks), hygiene and cleaning, and communication. In addition, employers must affirm in a written instrument that they have reviewed and understand the Guidelines and will implement them.
Notably, the Guidelines require employers to take steps to reduce interpersonal contact through various methods, such as limiting in-person presence to necessary staff, reducing on-site workforce, and staggering arrival/departure times. Although the employer is free to choose the method, it is recommended that employees who can work remotely continue to do so at least for the near future.
Additional requirements under the Guidelines that will noticeably impact life in the office include certain screening measures (discussed further below), closing all non-essential common areas (e.g., kitchens, gyms, game rooms) within the office, posting signage for social distancing throughout the office and in tighter spaces where social distancing is not possible (e.g., elevators, bathrooms), supplying of PPE to employees and requiring that PPE be worn around the office, in elevators and other tight spaces, setting up hand hygiene stations, maintaining cleaning logs, undergoing regular sanitization and disinfection of the office, and prohibiting food sharing among employees (e.g., buffet meals), among other things.
To enable building owners and business to screen entrants, Executive Order 202.38 was passed to allow temperature checks prior to individuals gaining entry into the office, and to permit a building owner or employer or building owner to deny admittance to anyone who refuses a temperature check and whose temperature is above that proscribed by the NYS Dept of Health guidelines. This is in addition to the mandatory health screening assessment under the Guidelines for employees, contractors and other visitors, that permit temperature checks and questionnaires asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and/or (3) close contact with confirmed or suspected COVID-10 case within past 14 days, with responses being reviewed and documented daily. On-site screeners should be trained by employer-identified individuals familiar with Federal, State and local protocols, and should wear appropriate PPE, including a face covering at minimum.
In addition to the foregoing, employers must establish a communication plan for employees, visitors and clients with a consistent means to provide updated information, and maintain a continuous log of every person, including workers and visitors, who may have close contact with other individuals at the workplace, such that all individuals may be identified, traced and notified in the event a worker is diagnosed with COVID-19. Such communication plan should provide for notification of state and local health departments if a worker tests positive for COVID-19 in cooperation with contact tracing efforts, including notifying potential contacts, such as workers, visitors and/or customers who had close contact with the individual while maintaining confidentiality required by state and federal law and regulations. The communication plan would also cover the more obvious things, such as that employees who are sick should stay home, or should return home if they become ill at work.
As offices reopen, they should also be guided by requirements and recommendations, as applicable, specified by New York City and by the Occupational Safety and Health Administration, Centers for Disease Control and Prevention, and Equal Employment Opportunity Commission.
The above relates exclusively to professional and commercial offices operating in New York City. There are different restrictions and requirements with respect to those other industries permitted to be open at this time (and some businesses are not yet permitted to be open). The requirements continue to evolve and we will continue to monitor New York City’s staged reopening.
See the following link for Phase Two office industry-specific guidelines: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/OfficesSummaryGuidelines.pdf
See the following link for Phase Two office industry-specific written safety plan template: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf
See the following link for NYC Phase Two office guidelines on re-opening: https://www1.nyc.gov/assets/coronavirus/downloads/phase2/offices.pdf
As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.