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 11^th, 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 15^th 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.