COVID-19: NYS Governor Cuomo Authorizes Reopening Select Non-Essential Businesses if Specific Metrics Are Achieved, Establishes Detailed New Guidance and Protocols for All Businesses

This week, NYS Governor Cuomo announced a plan to reopen the state’s economy. The plan outlines a phased, regional approach that may permit some non-essential businesses to reopen as early as May 15. To qualify for reopening, an individual region must meet seven specified metrics. Listed below, the metrics were established based on guidance from the Centers for Disease Control and Prevention, the World Health Organization, the US Department of State, and other health experts:

1. Decline in total hospitalizations: The region must demonstrate a sustained decline in the three-day rolling average of total net hospitalizations (defined as the total number of people in the hospital on a given day) over the course of a 14-day period. Alternatively, a region can satisfy this metric if the daily net increase in total hospitalizations (measured on a three-day rolling average basis) has never exceeded 15. 
2. Decline in deaths: The region must show a sustained decline in the three-day rolling average of daily hospital deaths over the course of a 14-day period. Alternatively, a region can satisfy this metric if the three-day rolling average of daily new hospital deaths has never exceeded five.
3. New hospitalizations: The region must experience fewer than two new hospitalizations per 100,000 residents, measured on a three-day rolling average. New hospitalizations include both new admissions and prior admissions subsequently confirmed as positive COVID-19 cases.
4. Hospital bed capacity: The region must have at least 30 percent of its hospital beds available.
5. ICU bed capacity: The region must have at least 30 percent of its ICU beds available.
6. Diagnostic testing capacity: Average daily diagnostic testing over the past seven days must be sufficient to conduct 30 tests per 1,000 residents per month.
7. Contact tracing capacity: Number of contact tracers in the region must meet thresholds set by the NYS Department of Health in collaboration with the Johns Hopkins University School of Public Health and Vital Strategies.

More detailed information regarding these metrics and each region’s compliance status can be found on the state’s regional monitoring dashboard.

Once a region has achieved all seven metrics, non-essential businesses can reopen in phases, starting with Phase One. A breakdown of the industries in each phase are as follows:

• Phase One: Construction; manufacturing; retail (curbside pickup only); wholesale trade; agriculture, forestry, fishing and hunting
• Phase Two: Professional services; retail; administrative support; real estate/rental & leasing
• Phase Three: Restaurants/food services
• Phase Four: Arts/entertainment/recreation; education

The state has confirmed that Phase One includes the following businesses:

Construction

• Building equipment contractors
• Building finishing contractors
• Foundation, structure, and building exterior contractors
• Highway, street, and bridge construction
• Land subdivision 
• Nonresidential building construction
• Residential building construction
• Utility system construction

Agriculture, Forestry, Fishing, and Hunting

• Greenhouse, nursery, and floriculture production
• Other animal production
• Other crop production
• Support activities for animal production
• Support activities for crop production
• Support activities for forestry

Retail (Curbside Delivery and Pickup Service Only)

• Clothing stores
• Direct selling establishments
• Electronics and appliance stores
• Electronic shopping and mail-order houses
• Furniture and home furnishing stores
• Florists
• General merchandise stores
• Health and personal care stores
• Jewelry, luggage, and leather goods stores
• Lawn and garden equipment and supplies stores
• Office supplies, stationery, and gift stores
• Used merchandise stores
• Shoe stores
• Sporting goods, hobby, musical instrument, and book stores
• Other miscellaneous store retailers

Manufacturing

• Apparel manufacturing
• Computer and electronic product manufacturing
• Electric lighting equipment manufacturing
• Fabricated metal product manufacturing
• Furniture and related product manufacturing
• Leather and allied product manufacturing
• Machinery manufacturing
• Nonmetallic mineral product manufacturing
• Paper manufacturing
• Petroleum and coal products manufacturing
• Plastics and rubber products manufacturing
• Printing and related support activities
• Textile mills
• Textile product mills
• Wood product manufacturing
• Other miscellaneous manufacturing

Wholesale Trade

• Apparel, piece goods, and notions merchant wholesalers
• Chemical and allied products merchant wholesalers
• Furniture and home furnishing merchant wholesalers
• Household appliances and electrical and electronic goods merchant wholesalers
• Machinery, equipment, and supplies merchant wholesalers
• Metal and mineral (except petroleum) merchant wholesalers
• Paper and paper product merchant wholesalers
• Professional and commercial equipment and supplies merchant wholesalers
• Wholesale electronic markets and agents and brokers
• Miscellaneous durable goods merchant wholesalers
• Miscellaneous nondurable goods merchant wholesalers

The governor also confirmed each business that reopens as well as essential businesses already open must have a plan to protect employees and consumers, make the physical work space safer, and implement processes that lower risk of infection in the business. In developing these plans, businesses will need to consider three main factors:

1. Protections for employees and customers: These include possible adjustments to workplace hours and shift design as necessary to reduce density in the workplace, enacting social-distancing protocols, and restricting non-essential travel for employees.
2. Changes to the physical workspace: Including requiring all employees and customers to wear masks if in frequent close contact with others and implementing strict cleaning and sanitation standards
3. Implementing processes that meet our changing public health obligations: Such as screening individuals when they enter the workplace or reporting confirmed positives to customers

Detailed guidance for Phase One businesses, including essential businesses already open, and a template for the required safety plan can be reviewed here. This new guidance will be subject of a separate legal alert from Barclay Damon and covered in next week’s “Back to Business: Return to Work Issues During and After COVID-19” webinar. Additional details regarding the re-opening of New York State’s economy are included in the “NY Forward: A Guide to Reopening New York and Building Back Better” guidebook.

If you have any questions regarding the content of this alert, please contact Chris Harrigan, partner, at charrigan@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.