States recently have begun transitioning from combating COVID-19 to reopening of certain non-essential businesses. On May 15, 2020, New York State joined the trend by its entry into Phase I of Governor Cuomo’s “NY Forward” reopening plan. Under Executive Order 202.31, non-essential businesses in approved regions are scheduled to reopen in four phases after regions have met certain benchmarks for testing, reduced infection rates, and a reduction in COVID-related hospitalization rates. As a part of the reopening strategy, business owners are required to create and implement a safety plan. The plans must outline how the business intends to comply with reopening guidelines and must be conspicuously posted at the work site. Enforcement of the requirement—and all COVID-19 Executive Orders— is done through the New York State PAUSE Enforcement Assistant Task Force in conjunction with local authorities.
The guidelines established by NY Forward require all businesses (essential and nonessential) to draft a safety plan to protect employees and consumers, regardless of industry. Although businesses are required to draft a safety plan, they are not required to submit the safety plan to New York State for approval. However, businesses must be prepared to produce the plan upon demand during inspections by the Department of Health or other entities. New York State allows businesses to use a generic template to meet this requirement, which can be found here: https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf.
If a business creates its own custom plan, it should address three key areas:
People - Implementation of physical distancing requirements, adjustments to hours of operations
Places - Protective equipment use, hygiene and cleaning, communication of expectations
Process - Screening of employees upon entrance and exit of workplace, contact tracing implementation
To assist business owners within the reopening industries, New York State has provided outlines of the requirements. After review, business owners may affirm their understanding and compliance with the guidelines, although this affirmation is not required. The outlines and affirmation links may be found here:https://forward.ny.gov/industries-reopening-phase.
In addition to the guidelines prescribed by Governor Cuomo, businesses must still abide by applicable rules established by the Federal government. Business owners and other leadership groups need to be aware of OSHA and CDC guidelines for cleaning and disinfecting their workspaces. The CDC safety guidelines emphasize the need for individuals and businesses to plan, implement, and update plans as necessary to clean and disinfect public spaces/common areas.  OSHA’s approach to workplace safety during the pandemic reinforces already established general safety guidelines for workplaces while emphasizing the need to use PPE’s and measures protecting employees from exposure to toxic cleaning substances. 
During Phase I of Governor Cuomo’s “NY Forward” reopening plan, infection rates and other key indicators determine whether a region progresses to subsequent phases. An increase in COVID-19 infections at any phase will pause reopening or, for some businesses, will pause the lifting certain restrictions in how the business operates. A decrease in infections will allow a region to progress to the next phase thereby allowing additional non-essential businesses to open (and those businesses will have to implement a safety plan). In addition, when regions progress to subsequent phases, some businesses within that region will be allowed to relax some of the operating restrictions currently in place. The implementation of the Governor’s reopening plan is region-specific and, as a result, business owners with multiple locations across New York State may be allowed to have some sites open for business while other sites remain closed depending on where the business site is located. For some types of businesses, business owners with multiple locations across the State may be operating business differently in different regions based upon the phase to which that region has progressed. Business owners should never assume that the implementation of Phase I or a progression to a subsequent phase in one region of the State is applicable to another region unless officially announced by New York State.
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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC
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