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New York Forward – Compliance Tips for Small Businesses
New York Forward – Compliance Tips for Small Businesses
By Melissa L. Green, Esq.
In March of this year, all non-essential businesses in New York State were closed in an effort to slow the spread of coronavirus disease 2019 (“COVID-19”). New York State has now begun to reopen in phases under the New York Forward Plan (“NY Forward”), and the State has placed requirements and obligations on businesses that are resuming in-person operations. All regions in New York have now begun reopening. Five regions (North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier) entered Phase Three on or about June 12, 2020.
In order for a business to resume (or for essential businesses, continue) in-person services, the State has placed specific obligations on employers. Under NY Forward employers must: 1) read and affirm the guidelines specific to their industry, and 2) prepare a written Business Safety Plan. Failure to comply with the State’s requirements may expose business owners to liability, fines, or investigations. Business owners should familiarize themselves with the NY Forward guidelines specific to their industry, and understand the obligations imposed on them, in order to avoid adverse effects and keep employees and visitors safe.
The State has released guidelines for industries in Phases 1 through 3, and “State Wide Guidelines” for miscellaneous industries. Guidelines for Phase 4 industries, which will include Arts/Entertainment/Recreation and Education, have not yet been released. Thus far, the State has released guidelines for the following industries:
Phase 1 – Construction; Agriculture, Forestry, Fishing, and Hunting; Retail Trade; Manufacturing; Wholesale Trade; and Higher Education Research
Phase 2 – Offices; Real Estate; Essential and Phase 2 In-Store Retail; Vehicle Sales, Leases, and Rentals; Retail Rental, Repair, and Cleaning; Commercial Building Management; Hair Salons and Barbershops; Outdoor and Take-Out/Delivery Food Services
Phase 3 – Food Services (In-Person); Personal Care
State Wide Guidelines – Child Care and Day Camps; Lake and Ocean Beaches; Religious and Funeral Services; Racing Activities; Dentistry; Auto Racing; Professional Sports Training Facilities; and Public Transportation
Business owners should read the State guidelines for their industry, and are required to affirm that they have read them. The affirmation can be found at https://forms.ny.gov/s3/ny-forward-affirmation. The guidelines vary by industry, and include requirements, guidance, and suggestions for business owners. A common requirement across industries is the requirement to screen employees and, in some instances visitors/clients, for symptoms of COVID-19. The “Office” industry guidance specifically requires that business owners screen employees daily to determine if they are or have experienced symptoms, have been tested and/or diagnosed, and/or have been in close contact with someone who has experienced symptoms or been diagnosed. Business owners may also elect to conduct temperature checks on employees and/or visitors/clients/customers, but may not keep health data (i.e., the result of temperature screenings). Employers should also encourage employees to notify the employer right away if the employee begins experiencing symptoms. Further, employers should be prepared to isolate employees who begin experiencing symptoms and cannot be immediately removed from the work place.
The NY Forward guidelines for all industries require that employers notify the local health department if any employee tests positive for COVID-19, and work with the health department in contact tracing efforts. To that end, the State further recommends that employers track employee contacts with other employees, customers, visitors, etc., in order to better assist in contact tracing efforts. The NY Forward guidelines also require, among other things, that employers to maintain a social distance of at least 6 ft. between all people, require masks at all times when social distancing is not possible, decrease in person interactions wherever possible, minimize or eliminate shared equipment and items, and clean high touch surfaces frequently.
Ensuring a proper supply of personal protective equipment (PPE), is imperative to employer operations. Employers must provide employees (and customers or clients if necessary) with masks and proper hand sanitizing materials. In certain industries and for certain tasks the employer may also be required to provide gloves and other PPE such as a face shield. Under current State Orders businesses have a right to refuse service to customers who refuse to wear a mask.
Two federal agencies, the US Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA), have also released recommendations for reopening and operating businesses. Employers may mitigate potential liability by following the guidance of these federal agencies. Further, the NY Forward guidelines largely incorporate, and in some instances adopt, the CDC and OSHA guidelines. Unlike CDC and OSHA recommendations however, many of the State guidelines under NY Forward are required. Businesses who fail to comply with the NY Forward guidelines may be subject to fines, investigations, and potential civil liability. Local municipalities will reportedly be responsible for enforcing the guidelines, and the State has encouraged employees to report violations to the Department of Labor.
Additionally, businesses are required to prepare a Business Safety Plan. The State’s Business Safety Plan template can be found at: https://ocfs.ny.gov/main/news/2020/COVID-2020Jun08-Guidance-Reopening-Plan-Template.pdf. Alternatively, business owners may elect to prepare their own Business Safety Plan, using the State template for guidance. The Safety Plan need not be submitted to a State agency directly, but should be conspicuously posted in the workplace, and made available upon request (i.e., during an investigation). The Business Safety Plan template includes, but is not limited to, the following provisions:
People – ensure appropriate social distancing and minimize in-person capacity to the extent possible;
Places – ensure adequate supplies of and proper use of PPE and hygiene materials (i.e., hand washing or hand sanitizer stations), and make plans for communication (i.e., maintain a log of persons who have had close contact in the workplace for contact tracing purposes); and
Processes – ensure proper screening of employees, and a plan for contact tracing assistance and cleaning/disinfecting in the event someone who has access to the workplace tests positive.
As with much of the guidance regarding COVID-19, this is a rapidly evolving area of law and policy. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. If you have specific questions regarding reopening, compliance with State guidelines, or preparing a Business Safety Plan, we would be happy to assist you. For further information regarding your particular circumstances, or if you need legal assistance, reach out to your normal contact at the firm, or contact Melissa Green ([email protected]).
