By Tracey Levy and Alexandra Lapes
With the goal of getting employees back to work safely while ensuring business continuity, and in compliance with local, state, and federal laws, employers should consider the following key measures to take as New York, New Jersey, and Connecticut permit more businesses to reopen during the COVID-19 pandemic.
1 – Closely follow your local reopening status and what level your business falls into within the phases of reopening
In New York State, Governor Cuomo issued the New York Forward plan, a guide to reopening businesses in New York, which outlines that businesses can reopen in phases based on each region meeting specific health metrics. As of May 20, 2020, seven regions (Capital Region, Central New York, Finger Lakes, Mohawk Valley, North Country, Southern Tier, and Western New York) are allowed to reopen and begin phase one of reopening. See here for a breakdown of progress on the metrics by region.
Geographic region is only the first threshold in New York, as the state also is phasing reopening by industry. The state provides a reopen “lookup tool,” where businesses in specific industries can determine whether they are eligible to reopen. In order to operate, employers must comply with all safety guidelines for their particular industry. All New York employers (including essential businesses) must also, as a condition of being open:
- affirm that they have read and understand their obligations to operate in compliance with New York State guidance – and submit that affirmation of compliance online; and
- develop a business safety plan, for which the state has issued a business safety plan template. While the business safety plan does not need to be submitted to the state, it must be posted in a conspicuous location in the workplace and made available to the state Department of Health or local health or safety authorities in the event of an inspection.
The reopening lookup tool contains specific guidance for certain industries, and covered employers must also affirm compliance with those industry-specific standards.
Employers should consult the NY Forward website at www.forward.ny.gov and applicable Executive Orders at www.governor.ny.gov/executiveorders periodically or whenever notified of the availability of new guidance. Employers can also visit Empire State Development’s website for frequently asked questions on how the New York Forward reopening plan impacts their business.
For New Jersey employers, on May 18, 2020, Governor Murphy announced a six-principle plan to restart New Jersey’s economy. While New Jersey’s stay-at-home order is still in effect until further notice, the Governor announced New Jersey is in phase one of the six-principle plan but stated that a coronavirus vaccine must be widely available before New Jersey fully reopens to the “new normal.” New Jersey created a reference tool for local establishments that are open and cooperating with state guidelines, see here.
Connecticut is also taking a gradual approach, which began May 20, 2020, for those businesses that see a sustained 14-day decline in hospitalizations, have the adequate testing capacity, have a contact tracing system in place, and have procured sufficient personal protective equipment (“PPE”). Businesses eligible to reopen as of May 20 are:
- Restaurants (outdoor only, no bar areas);
- Offices (continue WFH where possible);
- Museums, zoos (outdoor only);
- Remaining retail;
- Outdoor recreation;
- Personal services (hair); and
- University research.
They join already open businesses such as manufacturing, construction, real estate, utilities, essential retail, childcare, and hospitals. Industry-specific guidelines for reopening are available here. All businesses must self-certify online prior to opening that they are complying with safety measures. Connecticut’s “Stay Safe, Stay Home” and all other related safety measures otherwise remain in effect, with all nonessential workers directed to work from home, and social and recreational gatherings of more than five people prohibited. To stay up-to-date on Connecticut’s guidance to reopen see here, and for answers to frequently asked questions, see here.
Additional resources are available for safety information, and guidelines at:
2 – Prepare your workplace and take necessary protective measures
All businesses should take proactive measures to ease employees’ fears of returning to work and communicate new policies, procedures, and practices specific to their workplace. While every workplace will differ, consider the following proactive measures:
- Prepare a workplace safety plan in compliance with federal, state, and local law. A workplace safety plan should address how the business plans to:
- physically distance employees to ensure six feet between personnel, including limiting in-person gatherings, posting social distance markers using tape in common areas, limiting in-person meetings as much as possible and holding essential meetings in well-ventilated and well-spaced locations, limiting contact with customers, and considering shift changes or alternating lunch breaks if appropriate to the industry or business; and
- implement protective measures for employees, including health screening before employees can return to work and subsequent daily health assessments, an exposure-response plan, maintaining adequate supply of face coverings for employees, complying with CDC hygiene and sanitation requirements with a log of who will be cleaning what and the date/time/scope of cleaning, providing hand sanitizers, soap, and paper towels to employees and those entering the workplace, and having a plan for cleaning, disinfecting, and contact tracing in the event an employee tests positive for COVID-19.
- Communicate the safety plan to all employees. Through signage, advance communications, and ongoing training, ensure all employees and visitors in the workplace are aware of the organization’s social distance and safety protocols.
3 – Determine whether employees are eligible for modified work arrangements or accommodations, FFCRA leave, or other benefits and apply and redefine your policies fairly
Employers should review their workplace policies and update them as appropriate to address COVID-19 related personnel issues such as leave entitlements, teleworking or flexible work arrangements, the continuation of benefits, and accommodations for vulnerable employees. In addition to the Families First Coronavirus Response Act leave, which remains in effect for covered employers until December 31, 2020, employees in New York, New Jersey, and Connecticut may also be entitled to paid sick leave for COVID-19 related reasons. See our recent issue of Takeaways and prior HR Strategy blog postings for more information on state-specific COVID-19 leave entitlements.
When restoring employees to work, employers should develop a methodology that applies consistent and nondiscriminatory criteria to determine the rehire order. Be sure to notify state unemployment agencies of recalled workers, whether rehired or not, as employees forfeit their eligibility for continued unemployment benefits if they decline an offer of reinstatement because they are making more from unemployment.
Some employees who fall into a high-risk category for COVID-19 may request to remain on leave or continue working remotely as a reasonable accommodation. Employers need to give such requests due consideration, as with any other accommodation request.
4 – Check for additional guidance and shifting requirements
These remain primarily unprecedented times, and the legal landscape for employers is shifting continuously. Checking the available government links periodically is prudent, and employers should consider getting legal advice before taking employment actions.