Legal Considerations for Reopening the Workplace

On March 18, 2020, Governor Andrew Cuomo enacted Executive Order 202.6, temporarily closing all nonessential businesses in response to the coronavirus outbreak. In late April, Governor Cuomo issued guidance announcing a phased approach to reopening businesses that requires regions across New York State to satisfy seven criteria involving a drop in the infection rate, increased capacity in healthcare systems, increased ability to administer diagnostic tests and isolate new cases, and a capacity to implement contact tracing. With eight out of the state’s ten regions satisfying Governor Cuomo’s criteria, municipalities and businesses around the state prepare to return to work.

New York State’s Phased Reopening

Pursuant to Governor Cuomo’s “NY Forward” guide to reopening, the reopening will occur in four phases that dictate which industries will be permitted to reopen. Regions may begin reopening pursuant to Phase One once the region satisfies all seven of Governor Cuomo’s criteria. As of May 27, eight regions — Capital Region, Central New York, Finger Lakes, Mid-Hudson, Mohawk Valley, North Country, Southern Tier, and Western New York — satisfied the seven criteria and implemented Phase One of the reopening plan.

Although New York provides some guidance, employers must create their own plans for reopening their respective businesses. In developing reopening plans, New York asks businesses to consider three main factors. First, businesses must consider how to protect employees and customers. This means attempting to reduce workplace density, enacting social distancing protocols, and restricting nonessential travel. The second factor involves making changes to the physical workspace. This might require all employees and customers to wear face coverings and implementing sanitation procedures. Finally, businesses must stay informed of changing public health obligations imposed by state and local agencies and must implement processes to remain compliant with those obligations. As regions move to different phases, New York will continue to issue industry-specific guidance to assist businesses in creating reopening plans.

Phase One Guidance Requirements and Best Practices

Phase One permits the reopening of construction; agriculture, forestry, fishing, and hunting; limited retail; manufacturing; and wholesale trade. For all industries, New York’s reopening guidance imposes requirements with regard to physical distancing, personal protective equipment (PPE), cleaning and hygiene, communication, and screening. This section examines the common requirements imposed on all industries.

Physical Distancing Requirements

  • Ensure six feet between personnel unless safety or core function requires a shorter distance
  • All personnel must wear acceptable face coverings when six feet is not possible
  • Limit the workforce to only those necessary to essential activities for all work occurring indoors
  • Never allow any area of the facility to rise above 50 percent of the maximum occupancy
  • Limit work in tightly confined spaces to one worker unless all personnel are wearing face coverings
  • Never allow more than 50 percent of maximum capacity in a tightly confined space
  • Post social distancing signs denoting six feet of space in commonly used areas on-site
  • Rely on telework or video conferencing as much as possible, and when an in-person meeting is necessary, it should be conducted in an open, well-ventilated space
  • Designate areas for pick-ups and deliveries to limit contact

Protective Equipment Requirements

  • Provide personnel with acceptable face coverings at no cost and maintain an adequate supply of replacement face coverings
  • Face coverings may be cloth or surgical masks unless the nature of the work requires stricter PPE
  • Face coverings must be cleaned or replaced after use and may not be shared
  • Limit the sharing of objects as much as possible
  • Require personnel to sanitize hands or wear gloves whenever touching a shared object

Hygiene and Cleaning Requirements

  • Follow Center for Disease Control (CDC) and Department of Health (DOH) guidelines for maintaining cleaning logs
  • Provide and maintain hand-hygiene stations for personnel (alcohol-based hand sanitizer of at least 60% alcohol is acceptable when soap-and-water hand washing is not feasible)
  • Provide disinfecting supplies for shared or frequently touched areas and encourage employees to use those supplies
  • Conduct regular cleaning and disinfecting after at least daily, utilizing Department of Environmental Conservation (DEC) products that have been identified by the Environmental Protection Agency (EPA) as effective against COVID-19
  • If necessary, conduct cleaning and disinfecting more frequently (e.g., after every shift)
  • Conduct more-frequent cleaning and disinfecting of shared objects and surfaces as well as high-transit areas such as restrooms and common areas
  • Provide hand hygiene stations or disposable gloves when cleaning or disinfecting products cause safety hazards or degrade material or machinery
  • Prohibit all shared food and beverages

Communication Requirements

  • Affirm that the employer has reviewed and understands state-issued industry guidelines and that the employer is implementing them
  • Post signage reminding personnel to adhere to proper hygiene, social-distancing rules, appropriate use of PPE, and disinfecting protocols
  • Train all personnel on new protocols and frequently communicate safety guidelines
  • Establish a communication plan for updates for employees, visitors, and customers
  • Maintain a continuous log of all persons who may have close contact with other personnel on-site (excluding deliveries performed with proper protective equipment)
  • In the event that a worker tests positive for COVID-19, immediately notify state and local health departments and cooperate with all tracing efforts, including notifying other personnel who may have come in contact with the employee (be mindful of all confidentiality imposed by state and federal law)

Screening Requirements

  • Personnel who are ill must stay home, or if they become ill at work they must go home
  • Implement mandatory health screening assessments (e.g., questionnaires and temperature checks) before work each day and for all essential visitors
  • Examples of topics for questionnaires include asking about COVID-19 symptoms in the past 14 days, positive COVID-19 tests in the past 14 days, and close contact with confirmed or suspected COVID-19 cases in the past 14 days
  • Responses to questionnaires must be reviewed and documented daily
  • Personnel who present COVID-19 symptoms should be sent home for testing, and, if they test positive, may only return after a 14-day quarantine
  • Personnel who test positive but are asymptomatic may only return to work after a 14-day quarantine
  • Any worker who has close contact with a confirmed or suspected COVID-19 case but is asymptomatic should inform his or her employer, who may choose to allow them to continue working with additional precautions
  • Onsite screeners should be trained by employer-identified individuals who are familiar with all relevant government agency protocols and must wear appropriate PPE
  • Create a plan for cleaning, disinfecting, and contact tracing in the event of a positive case

New York’s Phase One guidance also includes a list of recommended best practices for some of the same subjects as the requirements have. The state does not require employers to implement these changes but suggests that the considers implementing the best practices. The following includes recommended best practices common to all industries.

Physical Distancing Best Practices

  • Limit in-person presence to only personnel necessary for a particular task
  • Adjust workplace hours, such as staggering schedules for personnel
  • Modify workspaces to maintain six feet of distance when possible
  • Reduce multidirectional foot traffic by using directional signage
  • Continue all teleworking from home whenever possible
  • Prohibit nonessential visitors to the place of work

Cleaning and Hygiene Best Practices

  • Wherever possible, increase ventilation with outdoor air
  • Encourage employees to bring meals from home and adhere to social distancing guidelines when they eat meals

Screening Best Practice

  • If possible, perform screening remotely (e.g., by telephone or electronic survey) before recalling workers to their places of work

All industries must implement the requirements described in this section, and the state encourages employers across all industries to consider the best practices suggested in this section. New York also has offered guidance to clarify which industries individual businesses fall into and has detailed guidance specific to each industry.

Industry-Specific Phase One Guidance

This section examines four individual industries — construction, retail, manufacturing, and wholesale trade — and the requirements and best practices unique to each. For comprehensive guidance on the agriculture, forestry, fishing, and hunting industry, please visit NY Forward’s industry-specific guidance website.

Construction

The construction industry includes residential, nonresidential, and utility system construction. Contractors for building equipment, building finishing, and building exterior, including foundation and structure, may resume business in Phase One. This industry also includes land subdivisions as well as highway, street, and bridge construction.

Retail

Phase One permits a limited reopening of some retail establishments. New York defines retail broadly. The retail industry includes stores selling clothes (including jewelry, luggage, leather, and shoes), office supplies, hardware and gardening goods, sporting goods, hobby materials, books, musical instruments, electronics and appliances, flowers, health and personal-care products, and furniture. Other retail establishments, including direct-selling stores, e-commerce and mail-order houses, general and used merchandise stores, and other miscellaneous retailers, are also part of this industry. For Phase One, all retail industry stores are limited to delivery, curbside pick-up, and in-store pick-up only. Shared surfaces will be more common than shared objects, but surfaces and objects (such as cash registers) should be disinfected and cleaned regularly.

New York imposes additional requirements on retail stores opening during Phase One. In addition to personnel wearing PPE, employers must erect physical barriers (e.g., plexiglass) any time personnel and customers will be less than six feet apart. Retail personnel must wear gloves any time they are handling food products and must sanitize their hands before and after transferring a load of merchandise. Retail employers should also prohibit all shared food and beverages.

There are also supplemental best practices unique to the retail industry. Retail employers should strive to stagger customer arrivals by implementing pick-up time windows. When customers arrive to pick up goods, employers should attempt to avoid direct handoffs. Employers should designate customer-waiting areas to maximize social distancing and should implement a contactless handoff plan that ensures that customers stay in their cars while deliveries take place. Similarly, employers should encourage the use of contactless payment methods. Employers should also implement plans for receiving and sanitizing any returned inventory. By utilizing social media and clear signage, employers can apprise customers of all social-distancing and face-covering policies. Finally, employers may encourage customers to complete health screening and to provide contact information for any potential contact tracing that may become necessary. Employers should not require customers to complete any health screening.

Manufacturing

New York permits manufacturing of all sorts to reopen during Phase One. This includes all manufacturing such as apparel, machinery, plastics and rubbers. The guidance recognizes that some indoor work activities, such as critical assembly lines, make it difficult to reduce the workforce to less than 50 percent of maximum occupancy. Accordingly, in situations like those, the guidance requires employers to implement additional mitigation strategies such as wearing face coverings at all times.

The guidance includes expanded best practices to address certain issues that are more prevalent in the manufacturing industry. In the event that the modification of the workspace to maintain six feet of distance is not feasible, the manufacturer should require face coverings or install physical barriers, so long as those barriers are compliant with Occupational Safety and Health Administration (OSHA) guidelines. For manufacturers supporting critical industries such as national defense, employers should implement modularized “pods” and maintain stable teams, to the greatest extent possible, to limit the effects of positive cases. In those situations, interactions between “pods” should be limited to the greatest extent possible. Finally, like retail, manufacturers should prohibit all shared meals.

Wholesale Trade

Like manufacturing, New York defines wholesalers broadly. This industry encompasses all forms of wholesale including apparel, chemicals, metals, and electronics. Much of the guidance specific to wholesalers mirrors the guidance issued for manufacturers. For example, the same carve-out for critical assembly lines exists for critical supply chain functions. In those situations, the employer must implement additional mitigation strategies like those imposed on manufacturers. When customers must inspect products, all parties must wear face coverings and gloves and sanitize their hands before and after inspections.

There are also additional best practices provided for wholesalers that are similar to those provided for manufacturers. Like manufacturers, if modifying the workspace to maintain six feet separation is not feasible, wholesalers should require face coverings or install physical barriers, so long as those barriers are compliant with OSHA guidelines. Similarly, wholesalers should seek to segment and batch activities to reduce the number of hands touching a product at a single time. Unlike retailers, wholesalers should prohibit all walk-ins and should instruct their retail clients to place orders online or via phone. If possible, remote inspection of products using video technology is preferred.

General Considerations and Trends for Returning to Work

In addition to monitoring return-to-work guidance at the local, state, and federal levels, employers must consider other general return-to-work concerns. For example, both OSHA and the CDC have issued broad guidance to assist employers as they prepare to return to work. This guidance advises employers to implement policies regarding healthy hygiene practices, improved disinfecting and ventilation, social distancing, telework and videoconferencing where possible, cancellation of nonessential travel, decreased use of shared spaces and shared items, and increased safety training before reopening their offices. When possible, employers should look to the NY Forward guidance when implementing return-to-work policies. This section briefly covers some of the general considerations that NY Forward does not explicitly address.

Hiring New Employees

Employers should consider conducting interviews and onboarding virtually to reduce in-person interactions. According to the Equal Employment Opportunity Commission (EEOC), employers may screen applicants for COVID-19 as long as the screening is applied in a uniform, nondiscriminatory manner. This includes delaying a start date for any applicants exhibiting symptoms of COVID-19 and taking applicants’ temperatures as part of preemployment medical exams. Employers may even go so far as to withdraw an offer from an applicant who has COVID-19 or who is exhibiting symptoms; however, an employer may not adjust a new hire’s start date or withdraw a job offer solely because the new hire is at higher risk for contracting COVID-19.

Discrimination and Harassment under COVID-19

Employers should remind employees that it is illegal under federal law to discriminate or harass coworkers based on race, national origin, color, sex, religion, age, disability, or genetic information. These issues may surface in situations involving employees who are at higher risk for contracting COVID-19. Employers should continue to monitor state and local legislation for any new antidiscrimination laws.

An employer may restrict an employee from coming on-site if a medical professional has diagnosed the employee with COVID-19 or if the employee is exhibiting symptoms of COVID-19. The CDC recommends that any employee who becomes ill with symptoms of COVID-19 leave the work-place. Neither the EEOC nor the Americans with Disabilities Act (ADA) prevents employers from following this CDC guidance. Employers may ask employees if they are experiencing symptoms of COVID-19 based on the guidance issued by the CDC. To remain compliant with the ADA, employers must maintain all information about employee illnesses as confidential medical records. Employers must remain mindful of the difference between maintaining a healthy work environment and singling out at-risk employees.

Fear of Contracting COVID-19

Generally, an employee’s refusal to return to work can be grounds for termination, but employers should consider whether employees are doing so because of a fear of contracting COVID-19. Where employees are afraid to return to work for fear of contracting COVID-19, employers should consider whether the employees can work remotely or whether the fear can be effectively addressed by taking additional containment measures. OSHA permits an employee to refuse to return to work if the employee believes, based on a specific fear of infection, that he or she is in imminent danger.

In late March, New York enacted a COVID-19-specific paid sick leave law for employees who are subject to mandatory or precautionary orders of quarantine or isolation. Employers should strive to remain compliant with additional state or local leave entitlements. In addition to the New York paid sick leave, employees may also be eligible for Federal Emergency Paid Sick Leave and Emergency Family and Medical Leave.

Unless otherwise prohibited by government authorities, employers may require employees to travel to areas that have been deemed safe by the CDC, especially when travel is necessary to perform job duties. For the sake of goodwill, employers should seek to work with employees who wish to avoid traveling for fear of contracting COVID-19.

Workers’ Compensation

In New York, employees who contract COVID-19 in the scope of employment may be eligible for workers’ compensation. The New York Workers’ Compensation Board (WCB) evaluates workers’ compensation claims on a case-by-case basis. For an employee to qualify, the infection must be classified as an “occupational disease,” which the WCB defines as a “disease or infection [that] may naturally and unavoidably” arise out of the course of employment. The New York WCB has not explicitly addressed whether COVID-19 constitutes an occupational disease; however, it is unlikely that infections resulting from standard, day-to-day contact with fellow employees would qualify as arising out of the course of employment. If the employee can demonstrate that his or her workplace creates a higher likelihood of contracting COVID-19, the employee is more likely to be entitled to workers’ compensation benefits.

Compliance with the ADA

According to the EEOC, some accommodations may meet an employee’s needs on a temporary basis without causing undue hardship to the employer. Employers should consider whether employees may qualify for accommodations under the ADA due to being immunocompromised. Some of the requirements imposed by the NY Forward reopening plan may satisfy requests by immunocompromised employees for reduced contacts with coworkers. Employers may also satisfy requests for reduced contact with coworkers by temporarily restructuring marginal job duties, temporarily transferring immunocompromised employees to different positions, or modifying schedules or shifts. Employers should also attempt to make reasonable accommodations for employees with preexisting mental illnesses that have been exacerbated by the pandemic.

The ADA requires the employer to maintain all medical information obtained from employees separately from the employees’ personnel files. This information includes temperature check results, on-site medical examination results, antibody test results, and any statements from the employees that they suspect that they have the disease. When an employee discloses to the employer that he or she has COVID-19, the employer may disclose this information to a public health agency without violating confidentiality obligations imposed by the ADA. An employer should not share the employee’s identity more broadly without first receiving voluntary, written consent from the employee.

Both the EEOC and the New York State Division of Human Rights have reported that accommodations have been the most significant issue with regard to ADA compliance during the return to work. According to the New York City Commission on Human Rights, an outright refusal to recall disabled workers due to a higher risk of contracting COVID-19 or other health concerns may open an employer to legal claims. Employers should strive to adhere to guidance regarding a safe and healthy work-place and continue to make reasonable accommodations when possible.

As employees return to work, employers should comply with all requirements imposed by their states. In New York, the NY Forward plan provides guidance for employers reopening. Employers must remain particularly vigilant as the state issues additional guidance as we move through the phases of reopening.

Please contact Faegre Drinker’s Labor & Employment attorneys with any questions.