New York City entered Phase III of reopening on Monday, July 6, 2020. However, indoor dining was postponed in New York City due to concerns regarding the risk of spreading COVID-19.
Long Island and the Mid-Hudson Valley are also in Phase III, while the remainder of the State has entered Phase IV of reopening.
New York State has announced that it will create an enforcement effort to supplement local enforcement of COVID-19 guidance and restrictions.
Businesses must continue to inform themselves about required measures to be implemented when welcoming back employees, commercial tenants and customers including consulting the NY Forward website and applicable executive orders on a periodic basis or whenever notified of the availability of new guidance.
As every reopening business is required to develop a written Safety Plan to address how it will re-open safely and protect against the spread of COVID-19 prior to reopening, it is imperative that businesses ensure that their required plan is in place. To assist businesses in this endeavor, New York State has developed a NY Forward Safety Plan Template. Each Safety Plan must address physical distancing, protective equipment, hygiene and cleaning, communication, screening and contact tracing.
Industry-Specific Re-opening Guidelines and Guidance
As expected, businesses in different industry sectors need to customize their reopening Safety Plans accordingly (e.g., depending on the level of exposure to the public, contact among colleagues, etc.). In addition to guidance propounded by the Center for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA), New York State has issued industry-specific guidelines in connection with its four-phase reopening plan which can be found here.
Below is a sampling of the available industry-specific guidelines and guidance.
The above guidelines provide mandatory and recommended best practices while the guidance represents minimum requirements, and businesses and employers should be mindful that they are still responsible for complying with other federal, state and local requirements relating to COVID-19 and their business operations in general.
The Rise of New Types of Complaints by Employees: Work-From-Home Denials
As businesses are re-opening, employers are addressing who to bring back to the workplace and when, and who can work remotely, why and for how long.
The New York State Department of Health has emphasized the importance of encouraging employees to work from home, as long as it is feasible and their job duties and responsibilities allow it, and to avoid going into the workplace unless strictly necessary. Employers should develop work-from-home policies and best practices to allow employees to work efficiently under such circumstances (e.g., regular surveys, tips, setting breaks throughout the day and morning and evening shifts and providing information regarding resources).
Employers also have ongoing obligations to comply with federal, state and local laws regarding disability accommodations in general and those specific to vulnerable populations (including older adults and people of all ages with underlying medical conditions), as defined by the CDC, who are or may be at an increased risk for severe illness if they are exposed to and contract COVID-19.
The New York City Human Rights Commission has taken the position that if an employer knows that an employee has a medical condition, that might place the employee at “higher risk for severe illness” if they get COVID-19, the employer is required to engage the employee in a cooperative dialogue about a potential accommodation, even if the employee has not requested a reasonable accommodation.
Additionally, New York State, the New York State Department of Labor (“NY DOL”) and the New York State Attorney General advise employees that they may file complaints related to COVID-19 regulations with the NY DOL if an employer is, for example, forcing an employee to work for a business that is allowed to operate and:
The NY DOL “COVID-19 Complaint Form” is easily accessible on the NY DOL’s website to complete and submit online and advises workers that if they work for a non-essential business, they may not be forced to go to the worksite or otherwise threatened if they do not work at a place other than their home.
Notwithstanding the above, the U.S. Equal Employment Opportunity Commission (EEOC) updated its Q&A relating to COVID-19 and clarified that an employee without a disability is not entitled to an accommodation under the Americans with Disabilities Act (i.e., request to telework) in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition. Nonetheless, the EEOC pointed out that employers are free to provide flexibility to their employees in such cases, as long as it does not result in discrimination on a protected basis.
With guidance and regulations being published and updated frequently, it is important that employers keep abreast of their obligations to their employees (and others, such as customers) under federal, state and local laws to not only avoid possible legal consequences but to ensure employees, visitors and customers feel comfortable re-entering the workplace.
If you have any questions, please contact Gina Piazza at firstname.lastname@example.org, Tara Toevs Carolan at email@example.com, or Tarter Krinsky & Drogin’s COVID-19 response team at CV19team@tarterkrinsky.com.
Attorney Advertising. The information contained in this Legal Alert provides a general summary of the topics covered and is not intended to be and should not be relied upon as legal advice. You should consult with your legal counsel for advice and before making legal, business or other decisions.