May 11, 2020
By: Kimberly Klein
On April 28, 2020, Governor Andrew Cuomo outlined guidelines for a phased plan to reopen New York on a regional basis. Among the guidelines is that each business must have a plan “to protect employees and consumers, make the physical work space safer and implement processes that lower risk of infection in the business.”
On May 11, 2020, Governor Cuomo reiterated the following safety precautions that businesses must plan for in order to reopen:
- Adjust workplace hours and shift design as necessary to reduce density in the workplace;
- Enact social distancing protocols;
- Restrict non-essential travel for employees;
- Require all employees and customers to wear masks if in frequent contact with others;
- Implement strict cleaning and sanitation standards;
- Enact a continuous health screening process for individuals to enter the workplace;
- Continue tracing, tracking and reporting of cases; and
- Develop liability processes.
The reopening will occur in stages by region as follows:
- Phase 1: construction, manufacturing and select retail (with curbside pickup).
- Phase 2: professional services, finance and insurance, retail, administrative support and real estate/rental leasing. Businesses considered "more essential" with inherent low risks of infection in the workplace and to the customer will be prioritized.
- Phase 3: restaurants, food services and hotels.
- Phase 4: arts, entertainment, recreation and education.
Prior to any opening, each region will be required to meet state-mandated metrics concerning the number of new infections, health care capacity, diagnostic testing and contact tracing. There will be a two week waiting period in between each phase.
Moses & Singer attorneys can help you develop a reopening plan to minimize legal risks. Based on the State’s guidance, your plan should consider the following:
Returning to the Workplace
- Appoint a COVID Coordinator. Have one person (or a committee) oversee COVID-related issues.
- Health Screening Processes. Employers will need to decide whether and how to screen workers. The EEOC has issued guidance clarifying that employers may make certain COVID-19-related inquiries to determine whether an employee would “pose a direct threat to health in the workplace” and stated that employers who follow CDC guidelines for screening will not violate federal disability laws. According to the EEOC, employers may distribute questionnaires, take temperatures and perform antibody or other testing. In some instances, employers may decide that social distancing and partitions may alleviate the need for testing.
- Coordinate With Your Landlord. Your landlord may require that tenants comply with certain testing requirements or building etiquette, such as elevator use.
- Rethinking Your Office Space. Employers need to consider physical changes to the workplace to ensure social distancing. Should hallways be one-way? Do cubicles or partitions need to be installed? Does physical space between employees need to be increased? Should high-efficiency air filters be installed? What are the costs associated with these changes?
- Enact Social Distancing Protocols. Access to common areas will have to re-thought, including bathrooms, cafes, conference rooms, and reception or other gathering areas.
- Develop an Infectious Disease Preparedness and Response Plan. This should incorporate guidance from OSHA, EEOC, the Center for Disease Control (“CDC”), the U.S. Department of Labor (“DOL”) and other state, local and federal government mandates. The plan should address preventing exposure as well as steps to take once exposure occurs.
- Prepare for Absenteeism. Most experts have forewarned that without a vaccine the virus will continue to spread. Employers must have contingency plans. See Identify and Isolate Sick Employees below.
- Interrupted Supply Chains. Prepare for interruptions in deliveries and supply chains. Have a back-up plan where possible.
- Review and Revisit Contracts. Business interruption as a result of the pandemic may require contracts to be rewritten or supplemented taking into account unforeseen events and allowing for more flexibility. The pandemic may also allow for lawful unilateral postponement or even termination of contracts.
- Personal Protective Equipment (PPE). Employers must determine what PPE they will need and whether they will supply the required PPE to their workforce. This will vary based on workplace needs. Likewise, employers should determine when and where PPE must be worn. For instance, employees may not need to wear face coverings in their own space, but may need masks and gloves when interacting with co-workers. The CDC, NYS and NYC require face coverings when individuals are unable to socially distance.
- Implement Strict Cleaning and Sanitation Standards. Promote handwashing; require respiratory etiquette (i.e., covering coughs or sneezes); provide hand sanitizer, tissues, trash receptacles; keep doors propped open to minimize touching, including garbage cans; discourage use of co-workers’ phones, office space, work tools and equipment where possible; regularly disinfect surfaces.
- Communicate Steps Taken. Recognize that workers are concerned about pay, leave, safety, and health issues. Circulate plans, distribute education videos, and communicate safety procedures. Such steps could help minimize absenteeism.
Identifying and Isolating Sick Employees
- Workers with Suspected or Confirmed COVID-19 Symptoms. Employees who are sick or may have COVID-related symptoms, must report the illness to their supervisor and/or Human Resources and stay home and isolate. A sick employee who comes to work should be immediately isolated and sent home. The CDC advises that workplaces do not need to be shut down but areas where the affected worker has been should be isolated and cleaned. Identified symptoms include: cough, fever, shortness of breath / difficulty breathing, chills, muscle pain, sore throat, new loss of taste or smell, gastrointestinal symptoms (such as nausea, vomiting, or diarrhea). CDC Guidance for Sick Workers, https://www.cdc.gov/coronavirus/2019-ncov/if-you-are-sick/steps-when-sick.html
- Trace, Track and Report Cases. Although employers must keep the identity of sick workers confidential, employers must inform co-workers who might have had contact with the affected employee so that they can isolate. Medical information must always be kept confidential and in a separate medical file. Employers may report workers with COVID-19 to health authorities.
- Clean Potentially Infected Sites. Identify sites where the sick employee may have been, close off, and sanitize. CDC Guidance for Cleaning and Disinfecting the Workplace, https://www.cdc.gov/coronavirus/2019-ncov/community/disinfecting-building-facility.html
- Return to Work Requirements. Determine whether you require certification from a healthcare provider before the worker returns to the workplace, taking into consideration workers may not be able to get timely certification. CDC Guidance for Discontinuing Isolation, https://www.cdc.gov/coronavirus/2019-ncov/hcp/disposition-in-home-patients.html
- Determine Your Essential Workforce. Employers need to evaluate who is essential and develop a plan to keep these workers in the workplace.
- Adjust Schedules. To achieve social distancing, employers need to consider remote work schedules, staggered schedules, adjusting workplace hours, alternate shifts, and/or downsizing operations to reduce density.
- Cross-train Workers. Employees should be trained to perform multiple functions in anticipation of increased absenteeism to minimize business interruptions.
- Minimize Contact. Minimize face-to-face time and establish more virtual communication.
- Be Prepared to Accommodate. Some workers may object to wearing PPE due to religious observances or health/disability issues. In other cases, more vulnerable populations may need an accommodation because they are more susceptible to the virus. Where possible, engage in interactive discussions and attempt to accommodate absent undue hardship. Possible examples include non-latex gloves, modified face masks or gowns, and/or relocating employees. Employers may require medical documentation.
Updating and/or Revising Policies
- Absenteeism. Plan for employees to be absent due to their own illness, illness of a family member or third-party, or childcare issue.
- Familiarity with Sick and Family Leave Laws. There are federal, New York state and city laws that govern sick and family leave that will apply to COVID-related illnesses, including the Family Friendly Coronavirus Response Act, NYS Coronavirus Paid Sick Leave, NYS Paid Sick Leave, NYC Earned Safe and Sick Time Act, NYS Paid Family Leave, and the Family and Medical Leave Act. Employers must be familiar with these policies and other laws and understand how they are applied. See previous M&S articles: COVID-19 Leave Obligations for New York Employers; The Federal Government Mandates Paid Sick and Family Leave In Response to COVID-19 ; Most NY Employers Must Provide Paid Sick Leave in 2021.
- Reinforce Anti-Discrimination / Harassment Policies. Laws addressing discrimination and harassment still apply and employers must be diligent in ensuring people are not singled out, blamed or persecuted as a result of the pandemic.
- Wage and Hour Issues. Employers must be cognizant of wage and hour issues. Non-exempt employees who work from home must still record hours. If you test, the testing and wait time may be compensable. See my article, How to Manage Your Remote Workforce.
- Travel. Restrict non-essential travel for employees and track personal travel. Determine whether employees need to quarantine upon return from travel. See https://wwwnc.cdc.gov/travel; www.cdc.gov/travel
- Visitors in the Workplace. Determine which policies are applicable to visitors, including restricting movement, PPE requirements, and testing.
- Update Handbooks. Make sure your handbooks reflect all updated policies, including telework, travel, sick leave and visitors in the workplace.
Please contact Kimberly Klein at (212) 554-7853 or firstname.lastname@example.org with any questions.