Author: Julie Bastian

Before joining Horton Law, I spent most of my legal career working as in-house counsel for a large privately-held global workforce solutions and business service company. I assist businesses with risk mitigation by analyzing their existing human resources policies and procedures and handling employment matters that come up. Nothing on the firm blog should be considered legal advice. If you need legal advice and think we can help, let me know!

Reopening Retail Businesses

New York Phase 2: Reopening Retail Businesses

Phase 2 of New York’s reopening plan includes several categories of retail businesses. Specific retail business guidelines are available for the following industries:

  • Essential and In-Store Retail
  • Vehicle Sales, Leases, and Rentals
  • Retail Rental, Repair, and Cleaning

The industry-specific guidelines have been divided into five categories: Physical Distancing; Protective Equipment; Hygiene and Cleaning; Communication; and Screening. Summary Guidelines for each of the above retail industry groups include both Mandatory and Recommended Best Practices. The retail business guidelines all indicate that businesses must also follow other CDC and Department of Health recommendations that will assist in protecting employees and customers and prevent the spread of the coronavirus.

Physical Distancing

The retail businesses in Phase 2 have a 50% occupancy limit for each location. This restriction applies to both personnel and customers.

Six-foot social distancing markers must be posted to remind employees and customers to keep space between them. These markings are especially important in commonly used areas such as cash registers, places where employees clock in and out for their shift, in locations where health screenings will occur, break rooms, and restrooms. The use of waiting rooms is discouraged where possible, and companies should establish designated areas for pickup and delivery.

Your business can find the maximum occupancy limit by locating the certificate of occupancy for each location. If your company is leasing the property, you can contact the landlord to obtain this information. The maximum occupancy likely applies to all tenants in the building if you are operating out of a multi-unit building. You may need to consult with the building owner to determine what portion of the reduced occupancy limit applies to your business operations.

In addition to restricting workforce and customer presence to 50% of the maximum occupancy, retail businesses must consider alternative methods for reducing their workforce. Possible options may include adjusting retail hours, shifts, and schedules to reduce occupancy. You might also be able to modify the layout of the businesses. Consider one-way foot traffic with signs that provide direction to employees and businesses.

Industry-Specific Suggestions

Businesses that have fitting rooms must equip them with appropriate cleaning/hygiene supplies for both employees and customers to use. Retail businesses that can do so should continue offering curbside pickup with reserved parking.

Protective Equipment

All customers entering retail stores must wear face coverings unless they are under two years old or have a medical condition that restricts their ability to wear them.

Employers must provide face coverings to all employees at no cost and clean or replace them when necessary. Employers are also responsible for adequately training employees on how to use face coverings properly while at work. However, employees may wear their own face coverings. Employees must wear face coverings whenever they come within 6 feet of a coworker or customer.

Businesses should eliminate the sharing of objects or equipment. Where that is not possible, they must supply employees with rubber gloves to prevent the transmission of the virus.

Industry-Specific Suggestions

In addition to requiring all employees in retail establishments to wear face coverings, employers must implement physical barriers at cash registers, such as plastic shield walls where doing so would not impact airflow, heating, cooling, or ventilation.

In retail businesses where travel and interaction with customers are frequent (e.g., home appliance repairs, in-home house cleaning services), employees must wear face coverings when within 6 feet of a customer. Cleaning services should provide and require all employees to wear disposable gloves when performing work. Travel within shared vehicles should be limited to only essential circumstances.

Hygiene and Cleaning

Retail businesses must adhere to hygiene and sanitation requirements set forth by the Centers for Disease Control and Prevention (CDC) and the Department of Health (DOH). These guidelines include providing and maintaining proper hand hygiene stations throughout the building.

Businesses must arrange for frequent cleaning at least after every shift, daily, or more frequently. Companies should pay particular attention to shared objects and surfaces and high traffic areas. This cleaning and disinfecting should be performed using the Department of Environmental Conservation (DEC) products that are recommended for COVID-19. Employees must also be provided with the supplies to clean and disinfect commonly used areas, shared equipment, and worksites before and after each use.

Businesses must perform a deep cleaning and sanitation as frequently as possible. This requirement may require companies to engage the services of a third party specializing in cleaning and disinfecting buildings.

Where possible, companies should increase the circulation of outdoor air while maintaining safety precautions.

Industry-Specific Suggestions

Retail businesses that are responsible for handling food products must provide and require employees to wear disposable gloves any time they are handling food. Companies accepting returned merchandise must have a plan for the receipt, cleaning, and resale of the item to ensure the health and safety of employees and customers.

Retail rental, repair, and cleaning companies that provide equipment or goods for rent or that provide repair services must clean and disinfect equipment or goods before pickup by customers and after the items are dropped off or returned to their location. Companies or individuals that provide residential or commercial cleaning services must sanitize all equipment before and after each use.

Any businesses that provide laundry services such as a laundromat or dry cleaner should follow the guidelines released by the CDC. Examples include laundering at the warmest appropriate water setting, drying everything completely, and never shaking dirty laundry. Each customer’s laundry should be handled separately and never combined. As with everything else, these businesses should clean and disinfect any equipment used during the service after each use.

Communication

Once the company has had an opportunity to read and digest the guidelines, it must determine to implement them in the workplace. They must develop a safety plan. New York State has created a safety plan template to use as a starting point. However, each business should have a plan that is consistent with their business and facilities.

Employers may include additional policies and procedures that will assist with slowing down or eliminating the transition of the virus. Once that is complete, the company must submit an affirmation confirming that they have read, understood, and intend to implement the guidelines.

All employees should be trained on the new protocols and educated on the importance of cleaning and sanitation, as well as the need to respect social distancing guidelines and wear face coverings, when appropriate.

Signs will need to be posted inside and outside of the retail locations to act as a constant reminder to customers and staff of the importance of proper hygiene, social distancing, appropriate use of PPE, and the mandatory cleaning and disinfecting protocols.

Many of the recommended signs can be found on the Centers For Disease Control and Prevention website, located here. It contains printable posters for businesses to utilize related to the following:

  • How to protect yourself and others in public settings;
  • The importance of wearing face coverings;
  • How to safely wear cloth face coverings;
  • Symptoms of COVID-19 that individuals should look out for;
  • How to stop the spread of germs;
  • Facts about COVID-19; and
  • Hand washing.

Screening & Tracking

Businesses must implement mandatory health screening assessments for all employees and visitors to the worksite. This screening should include questions about symptoms and an individual’s contact with COVID-19 patients. It can also include temperature checking, testing, and the collection of contact information. Companies cannot force companies to participate in health screening. But businesses are encouraged to attempt to collect this information if possible. Remote screening before a person comes on-premises is ideal, if possible.

Employees who have COVID-19 symptoms and either tested positive for the virus or did not receive a test must remain home for a minimum of 14 days. An employee who does not have symptoms, but tested positive for the virus must self-quarantine for 14 days. If an employee had close contact with a person with COVID-19 for a prolonged period of time and is symptomatic, they must remain in quarantine for 14 days. An employee who had contact with an individual with COVID-19, but is not symptomatic, should also stay in self-quarantine for 14 days.

Upon reopening, employers are required to keep a daily continuous log of all employees and visitors that enter the worksite. Where possible, companies should try to collect customer information as well. The log should consist of contact information for anyone who had close contact with workers, unless appropriate PPE is being utilized. It is recommended that businesses attempt to collect contact information for customers, but it cannot be mandated. Contact information should be collected, to the extent possible, so proper contact tracing can occur. A communication plan must be established to determine who will be given responsibilities for tracking visitors, collecting contact information, conducting the mandatory health screening, and how positive cases or contacts should be reported to management and the state and local health departments.

What Should New York Retail Businesses Do Next?

If you fall into one of these Phase 2 retail categories, you must review the industry-specific guidelines and affirm that you have read, understood, and intend to implement them before reopening. You must draft and post a safety plan and post appropriate signage. You also need a strategy to perform health screenings and assist in contact tracing when required.

Retail businesses must designate a safety monitor that is responsible for ensuring compliance with the company’s safety plan. Employers have to train individuals who will be responsible for conducting the health screening, collecting contact information, performing contact tracing, and notifying the state and local health department of positive tests.

The company must also develop a plan for cleaning, disinfecting, and performing contact tracing if a positive case occurs. Minimum measures should include cleaning and disinfecting all heavy-transit areas and high-touch surfaces.

 

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Reopening New York - Phase 2

Reopening New York – Phase 2

The federal government put the individual states in charge of reopening after coronavirus shutdowns. In New York, Governor Andrew Cuomo divided New York into 10 regions and assigned a Control Room to oversee the reopening efforts in each Region. Some of those regions entered Phase 2 of the reopening plan on May 26, 2020. The State issued industry-specific guidelines for the businesses that can open or expand operations in this next phase.

Click here for more information about Phase 1 of New York’s reopening plan.

Phase 2 Industries

Phase 2 includes these businesses:

However, the following industries will remain closed in Phase 2:

  • Malls; specifically, any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease; however, any stores located within shopping malls, which have their own external entrances open to the public, separate from the general mall entrance (e.g., strip malls), may open
  • Dine-in and on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption
  • Large gatherings/event venues, which include establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience
  • Gyms, fitness centers, and exercise classes, except for remote or streaming services
  • Video lottery and casino gaming facilities
  • Movie theaters, except drive-ins
  • Places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions

Phase 2 Reopening Guidelines

New York released industry-specific guidance for Phase 2 of the reopening plan on the State’s NY Forward website. The site includes “Summary Guidelines” and “Detailed Guidelines” for each covered industry segment. The documents contain information on how businesses should reopen. Specifically, how to operate in a manner that will minimize the transmission of COVID-19 and adequately protect employees, customers, and vendors from potential exposure. The guidance incorporates CDC and OSHA guidance. The NYS guidelines also set minimum requirements that businesses must implement before reopening. Companies are free to adopt additional health and safety measures to protect people in their offices, stores, and other places of business.

Mandatory Safety Plans

New York has provided a template safety plan that companies can use as a starting point. Upon completion, each business must post its COVID-19 safety plan “conspicuously” in the workplace. Companies don’t have to submit their individual safety plans to any governmental agency, but must make them available if an authorized agency conducts an inspection.

Review of Industry-Specific Guidelines and Affirmation of Receipt

Any business that intends to reopen under Phase 2, or that remained open as an essential business but fits into a Phase 2 industry category, must affirm that it has read and understood the guidelines and will implement them.

Common Phase II Health and Safety Requirements

Although the industry guidelines vary, most contain similar basic requirements. For example, businesses must:

  • Provide all workers with an acceptable face covering at no cost to the employees.
  • Adhere to hygiene, cleaning, and disinfecting requirements from the CDC and Department of Health.
  • Maintain cleaning logs on site that document the date, time, and scope of cleaning.
  • Limit occupancy to 50% of building capacity, including employees, customers, and vendors.
  • Provide and maintain hand hygiene stations in the office, including handwashing with soap, running warm water, and disposable paper towels, as well as an alcohol-based hand sanitizer containing 60% or more alcohol for areas where handwashing is not feasible.
  • Limit occupancy of tightly confined spaces, like elevators, stock rooms, or behind cash registers, to only one person at a time, unless all individuals are wearing face coverings.
  • Post social distancing markers using tape or signs that denote 6 ft. of spacing in commonly used and other applicable areas.
  • Limit the sharing of objects and discourage touching of shared surfaces.
  • Place hand sanitizer throughout the office in convenient locations for use by employees and customers.
  • Post signage to remind personnel and customers to adhere to proper hygiene, social distancing, appropriate PPE, and cleaning and disinfecting protocols.
  • Maintain a continuous log of workers and visitors who have close contact with other individuals at the worksite or area.
  • Implement mandatory health screening and assessment (e.g., questionnaire, temperature check) for employees, contractors, and other visitors, asking about (1) COVID-19 symptoms in past 14 days, (2) positive COVID-19 test in past 14 days, and (3) close contact with confirmed or suspected COVID-19 cases in the past 14 days. Responses must be reviewed and documented daily.
  • Have a plan for cleaning, disinfecting, and contact tracing in the event of a positive case.

Top Priorities for Phase 2 Businesses

If your business falls into a Phase 2 industry, you must review the relevant guidance documents. They are available at https://forward.ny.gov/industries-reopening-phase.

Remember, your company must submit the compliance affirmation and prepare and post a written safety plan. To do so, you must evaluate the realities of your operations and modify them accordingly. As the State documents emphasize, these are only the legally-mandated minimum requirements. Government officials may shut you down or take other action if you are not complying. However, satisfying the State’s guidelines does not guarantee that the coronavirus cannot be spread in your facilities. Moreover, it likely will not provide an absolute defense to possible claims by employees or other individuals that your business is unsafe or that the company is responsible for them contracting COVID-19.

The State’s guidelines are not close to normal operations for most businesses. And your company must continue to monitor the latest developments and adapt accordingly. There is currently no timetable for how long these extensive restrictions will remain in place. For example, the start of Phase 2 has not lifted the restrictions on Phase 1 businesses.

 

Horton Law continues to monitor the evolving requirements for all New York businesses. Sign up for our email newsletter to receive our latest blog posts and announcements of upcoming free webinars on this topic. You can also follow us on LinkedIn for even more frequent updates.

New York Staffing Agencies

New York Staffing Agencies and COVID-19

On March 20, 2020, Governor Andrew Cuomo signed an executive order that outlined New York’s 10-point Policy enacted to Assure Uniform Safety for Everyone (PAUSE). Among other things, the PAUSE order closed non-essential businesses and encouraged the residents of New York to stay at home. Some “essential businesses” could continue operating under social distancing rules, often meaning only essential personnel worked onsite. New York staffing agencies faced these restrictions as well, but often without control over the employees’ workplaces.

Under certain conditions, non-essential businesses and non-essential personnel who work for essential businesses were permitted to continue operations. Companies of all shapes and sizes and in all industries immediately scrambled to develop alternative ways to operate under the new restrictions. The most common change across all sectors in New York was a shift to a remote workforce.

Are New York Staffing Agencies “Essential Businesses”?

The COVID-19 pandemic has significantly affected business operations for New York staffing agencies. Many staffing agencies determined that their company was an “essential business,” because they provide other essential businesses with temporary contractors and assistance with direct-placement needs. These include clients throughout the health care, food service, manufacturing, and technology industries, as well as some start-up companies.

Despite being able to continue servicing these clients, some staffing agencies experienced a steady decline in revenue and the number of placements. Even “essential businesses” reduced their total headcount, including temporary workers that were previously placed on assignment. Outstanding job orders and negotiations with prospective clients were also canceled due to the economic downturn.

New York staffing agencies had to modify their business operations quickly to remain operational and survive this pandemic. These changes typically included one or more of the following:

  1. An increase in the number of remote workers;
  2. Permanent or temporary layoffs of direct staff and contractors;
  3. Reduced compensation for either direct staff employees or contractors;
  4. An immediate need to purchase equipment and technology for remote workers;
  5. Adopting or revising company policies and procedures, employment agreements, and client contracts to address changes arising from the public health emergency.

The federal, state, and local governments are working on a plan to reopen the economy without significantly increasing the number of COVID-19 cases, hospitalizations, or deaths. President Trump announced that individual states would have the discretion to determine when and how to reopen their economies subject to some recommended prerequisites.

Recommended Federal Criteria for States to Reopen the Economy

Symptoms:

  • A downward trajectory of influenza-like illnesses reported within a 14-day period; AND
  • A downward trajectory of COVID-like syndromic cases reported within a 14-day period.

Cases:

  • A downward trajectory of documented cases within a 14-day period; OR
  • A downward Trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests)

Hospitals:

  • Treat all patients without crisis care; AND
  • A robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

New York’s Approach to Reopening

In New York, Governor Andrew Cuomo took the reins in determining how and when the State would reopen. On May 4, 2020, he announced during his daily press conference, a 4-phase plan for reopening the economy. Then on May 11, 2020, Governor Cuomo announced the creation of 10 regional Control Rooms across the state. These Control Rooms, consisting primarily of county executives, will apparently lead the reopening within their part of the State.

If the number of positive cases, hospitalizations, and deaths continues to decline, New York will begin to reopen businesses. During this transition, the State and the regional Control Rooms will carefully monitor the relevant data, including the transmission rate for COVID-19. If the transmission rate exceeds 1.1 (additional infections per infected individual), all reopening efforts may come to a screeching halt.

Prerequisites to Reopening a New York Region

So far, Governor Cuomo has indicated that before a region within New York can begin to reopen the economy, the following must occur:

  1. There must be a 14-day drop in hospitalization and deaths;
  2. The rate of new hospitalizations must fall below 2 per 100,000 residents across a 3-day rolling average;
  3. At least 30% of hospital and ICU beds must be unoccupied;
  4. At least 30 tests must be given for every 1,000 residents per month; and
  5. Each county must retain at least 30 contact tracers per 100,000 residents.

4-Phase Approach       

Before reopening, regions must meet the above prerequisites. Governor Cuomo previously mentioned a 14-day waiting period between phases to collect and review all relevant data. However, on May 11th, he indicated the data, not a fixed timeline, would guide the transition between the phases. Relevant factors will include whether the action taken under each phase has led to an increase in the number of positive cases, hospitalizations, and deaths. Officials will also be monitoring the transmission rate and will be prepared to shut everything down if the rate meets or exceeds 1.1.

Phase 1 – Allows construction, manufacturing, wholesale suppliers, and some retailers to reopen as soon as May 15th in regions reporting a steady decline in COVID-19 hospitalizations and deaths.

Phase 2 – Finance, real estate, insurance, and other types of retail businesses could begin to reopen.

Phase 3 – Begin to open restaurants and more retail.

Phase 4 – Reopen arts, entertainment, and education.

How Should Staffing Agencies Prepare for Reopening?

Employee Screening and Testing

Staffing agencies must determine if it makes sense to perform screenings or testing on direct staff employees before they enter the workplace. These measures could include temperature screening, symptom screening, questions related to recent travel or contact with individuals who tested positive for COVID-19, and active or antibody testing for COVID-19. Agencies should develop a plan for the implementation of whatever screening and testing they decide to conduct.

The decision to screen or test contract employees is much more complicated for staffing agencies. Contract employees typically work onsite at a client location. Therefore, staffing agencies must decide if it is feasible to screen or test contract workers or whether a more practical solution would be for clients to include contract employees in their screening and testing procedures. For the latter, staffing agencies would need to contact each client to determine what policies and procedures have been implemented. They would then need to determine whether their clients could treat contract employees similarly. Agencies should review the client procedures to determine if they comply with local, state, and federal law and whether the clients will conduct them in a non-discriminatory manner.

Return-to-Work Protocol

Each staffing agency should be developing a detailed plan to handle employees that test positive for COVID-19, are symptomatic, or must quarantine or isolate because of potential exposure to the coronavirus. The plan should include procedures for both direct staff and temporary contract employees. For example, will the employee need to provide medical documentation before returning to work?

Sanitizing and Disinfecting

Before reopening, staffing agencies should develop policies and procedures for disinfecting workstations, office equipment, and common areas such as lunchrooms, break rooms, and restrooms. They should provide employees access to sanitizer and tools to clean their workstations regularly and personal protective equipment, such as face masks and gloves, where possible.

Modifications to the Office

New York staffing agencies should consider making necessary changes to the physical workspace to optimize social distancing. Possible approaches include maintaining or increasing the number of employees that have permission to work remotely and staggering in-office workdays, shifts, or hours to reduce the number of employees present in the office. Agencies should implement policies to reduce the number of employees allowed in the breakroom, lunchroom, or restrooms at one time.

Staffing agencies should inform employees about the steps taken to educate, train, prepare, and protect its workforce and clients during this pandemic and reduce the risk of exposure or transfer of the COVID-19 virus to others. Agencies should also take the time to notify their clients of the steps taken to maintain or increase the level of customer service, to address client needs during this public health crisis, and to educate and equip staff and contractors with the tools necessary to perform their job duties safely and successfully.

It is also critical for staffing agencies to request that all clients provide information about all changes to their worksites, workstations, job duties, and policies and procedures that would affect their contract employees. This information is necessary for staffing companies to determine if the proper health and safety protocols are in place to protect their contract employees while on assignment. Since a staffing agency generally does not control the office space, worksite, schedules, safety protocols, and job duties for contract employees, an agency needs that information to assess the overall health and safety risks to its contractors and reduce its future liability. This information will allow staffing agencies to determine the risk level associated with the temporary placement and whether it makes sense to remove the contractor from the position given potential exposure.

Additional Considerations for New York Staffing Agencies

For New York staffing agencies to remain in business and be successful, they must review their current business operations and determine what changes to make and how to improve operations and customer service moving forward. Communication is key. As with any business, staffing agencies must communicate effectively with both employees and clients about how they’re managing these circumstances.

Due to the economic downturn caused by the pandemic, businesses will be looking to reduce costs wherever possible. It is prudent for staffing agencies to find ways to remain relevant during this time. These measures may include providing contractors with equipment or technology that would enable them to work from home and give clients peace of mind about security and privacy, as well as productivity. Staffing agencies should also review existing contract terms. They need to ensure that all terms can still be met under the circumstances. They should also consider future modifications that would help reduce or eliminate any obstacles encountered during or following this pandemic.

 

We expect rapid development on these issues over the following months. For more updates, subscribe to our email newsletter and follow Horton Law on LinkedIn.