Takeaways

Under its reopening plan, New York is divided into 10 regions and each region may reopen its businesses in a four-phased process.
As of May 20, seven regions have met the stated metrics and commenced with Phase One.
New Jersey has also begun phased reopening, with precautions, starting with nonessential construction, curbside pickup for nonessential retail “car gatherings” and beaches.

On Friday, May 15, New York began reopening businesses after widespread closures in response to the coronavirus pandemic. New York Forward, the New York plan to reopen the state, divides the state into ten (10) regions. Each region may reopen in a four-phased process as it satisfies certain metrics. Generally, the metrics monitor the region’s new infections and analyze the region’s health care, diagnostic testing, and contact tracing capacities.1 The executive orders remain in effect, as described in this alert, requiring all people in New York to wear masks or face coverings in public, including when taking public or private transportation. As previously advised, employers will generally be expected to provide face masks to employees.(This link provides an updated map and table of each region’s status.)

Seven regions have satisfied the metrics required to begin reopening and commenced with the reopening of Phase One businesses: Capital Region, Central New York, Finger Lakes, Mohawk Valley, North County, Southern Tier and Western New York. The New York City region has satisfied the metrics with respect to the contact tracing, testing requirements, and the 14-day declines in new infections, and is approaching the required metrics for new hospitalizations and hospital capacity.

Reopening Phases
New York will open businesses in phases of priority. Businesses considered “more essential” with inherent low risks of infection in the workplace and to customers will be prioritized, followed by businesses considered “less essential” or those that present a higher risk of infection spread. A minimum 14-day wait period is required before progressing to the next reopening phase. As the infection rate declines, the pace of reopening businesses will be increased.

  1. Phase One will allow the reopening of construction, manufacturing, wholesale supply chain, and agriculture, forestry, fishing, and hunting businesses.
  2. Phase Two will allow the reopening of storefront retailers and business in the professional services, finance and insurance, administrative support, and real estate and rental leasing industries.
  3. Phase Three will allow the reopening of hospitality industry businesses (e.g., restaurants).
  4. Phase Four will allow the reopening of schools and arts, entertainment, and recreation businesses.

Business and Employer Safety Precautions
Each business and industry is required to develop a plan to protect employees and consumers, make the physical workspace safer, and implement processes that lower risk of infection in the business. Only those businesses or entities in a region that meet the prescribed public health and safety metrics, as determined by the Department of Health, will be eligible for reopening. In developing these plans, businesses will need to consider three main factors:

  1. Protections for employees and customers. These include possible adjustments to workplace hours and shift design as necessary to reduce density in the workplace, enacting social distancing protocols, and restricting nonessential travel for employees.
  2. Changes to the physical workspace. These include requiring all employees and customers to wear masks if in frequent close contact with others and implementing strict cleaning and sanitation standards.
  3. Implementing processes that meet changing public health obligations. These could include screening individuals when they enter the workplace and reporting confirmed positives to customers. These processes will vary from business to business.

Additional Openings
New York also announced the easing of restrictions on sports and recreational activities. Gov. Cuomo announced that the state is ready to work with professional sports franchises to plan reopenings without fans. Additionally, New York, New Jersey, Delaware and Connecticut will reopen public beaches at 50% capacity on Memorial Day weekend. However, New York City beaches will not yet reopen. New York City Mayor Bill de Blasio reiterated on Monday, May 18, that he did not expect the city to meet the state’s criteria to begin Phase One until “the first half of June.”

NEW JERSEY
In neighboring New Jersey, Governor Phil Murphy has announced a series of initial steps in the state’s phased approach to reopening. As part of New Jersey’s Road Back, the Governor issued two executive orders setting parameters for the resumption of certain nonessential business operations and the reopening of public spaces.

Specifically, Executive Order 142 permits nonessential construction activities, curbside pickup at nonessential retail businesses, and car gatherings for drive-through or drive-in events. The Order provides the following guidance on these initial reopening measures.

Nonessential Construction. Beginning May 18, nonessential construction projects may resume, provided that these worksites adopt the following policies specified in the Order:

  • Prohibit nonessential visitors from entering the worksite;
  • Engage in appropriate social distancing while picking up or delivering materials;
  • Limit worksite meetings, inductions and workgroups to groups of fewer than 10 individuals;
  • Requires individuals to maintain six feet or more distance between them wherever possible;
  • Stagger work start and stop times where practicable to limit the number of individuals moving in and out of the worksite concurrently;
  • Identify congested and “high-risk areas,” including but not limited to lunchrooms, breakrooms, portable restrooms, elevators, and limit the number of individuals at those sites concurrently where practicable;
  • Stagger lunch breaks and work times where practicable;
  • Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises except where doing so would inhibit the individual’s health or the individual is under two years of age, require workers to wear gloves while on the premises, and adopt certain policies for individuals who refuse to wear a face covering;
  • Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper usage and disposal;
  • Limit sharing of tools, equipment and machinery;
  • Provide portable hand washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60 percent ethanol or 70 percent isopropanol where running water is not available;
  • Require frequent sanitization of high-touch areas like restrooms, breakrooms, equipment and machinery;
  • Require workers to sanitize work areas and keep a distance of at least six feet from the occupants when the worksite is an occupied residence; and
  • Place conspicuous signage at entrances and throughout the worksite detailing these mandates.

Note that these requirements apply to all businesses engaged in construction projects in the state.

Curbside Pickup at Nonessential Retail Business. The Order permits nonessential businesses that allow curbside pickup to resume operations, effective May 18. However, in-store operations must remain closed to customers. For businesses that choose to open and make curbside pickup services available, the Order prescribes mitigation measures that must be in place. These include, but are not limited to, facilitating customer transactions in advance by phone, email or other means; requiring workers to follow social distancing and other mitigation practices (e.g., wearing cloth face coverings when in contact with other workers or customers); and limiting in-store operations to those employees responsible for the curbside pickup operations.

Car Gatherings. Permissible car gatherings, which include drive-in movies, religious services, or drive-through farms, may open to the public, provided they adhere to requirements regarding social distancing measures that apply to attendees in their vehicles and event organizers, and contactless pre-payment options where applicable. Recreational and entertainment events that adhere to these requirements are also permissible under the Order. This provision took effect May 13.

Further, in anticipation of the upcoming summer beach season, effective May 22, Executive Order 143 permits beaches, boardwalks, lakes and lakeshores to reopen with social distancing and other mitigation measures in place. To that end, the Order requires municipalities, lake commissions, private club associations and other local governments to, among other things, implement capacity limitations, prohibitions on special events (e.g., festivals, concerts, fireworks and movies), and social distancing practices to limit physical interactions in these spaces. While restaurants and bars located in these areas may offer limited delivery and take-out services, amusement parks, arcades and other places of public amusement must remain closed.

As states begin easing restrictions, businesses will continue to face challenges about how to best reopen. Foreseeing these issues, the U.S. Equal Employment Opportunity Commission (EEOC) has provided additional information practical issues that employers and employees will face, addressing concerns of medical examinations, confidentiality of medical information, reasonable accommodations, and the interplay of new public health guidelines and workplace discrimination laws. Additionally, as in New York, the CDC interim guidance for essential employees will likely continue to be incorporated into state and local guidance for all employees. Businesses will need to adopt new policies and procedures to protect employees and customers from the spread of the coronavirus, some of which may come at employers’ expense.

Beyond employment procedures, businesses should anticipate widespread impacts from the coronavirus during the reopening stages. These changes may range from requiring new provisions when entering into business contracts and reassessing real estate holdings, to updating data privacy policies. Further, businesses should prepare for the possibility of additional stay-at-home orders that may become necessary as social distancing policies are relaxed. Given the ever-evolving nature of the COVID-19 pandemic and corresponding regulatory responses, employers should be developing plans for business decisions and contingency plans during the reopening stages.


Pillsbury’s experienced multidisciplinary COVID-19 Task Force is closely monitoring the global threat of COVID-19 and providing real-time advice across industry sectors, drawing on the firm’s capabilities in crisis management, employment law, insurance recovery, real estate, supply chain management, cybersecurity, corporate and contracts law and other areas to provide critical guidance to clients in an urgent and quickly evolving situation. For more thought leadership on this rapidly developing topic, please visit our COVID-19 (Coronavirus) Resource Center.


1.  Specifically, the seven regional metrics governing reopening are: (1) a decline in total hospitalizations over the course of a 14-day period; (2) a decline in deaths over the course of a 14-day period; (3) fewer than two new hospitalizations per 100,000 residents over a 14-day period; (4) a minimum availability of 30% of the region’s hospital beds; (5) a minimum availability of 30% of the region’s ICU beds; (6) the capacity to achieve 30 tests per 1,000 people per month; and (7) a minimum of 30 contact tracers per 100,000 residents.

These and any accompanying materials are not legal advice, are not a complete summary of the subject matter, and are subject to the terms of use found at: https://www.pillsburylaw.com/en/terms-of-use.html. We recommend that you obtain separate legal advice.

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