The new order provides a pathway for certain industries to open doors sooner than others.
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.
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.
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:
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.”
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:
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.