On May 4, 2020, New York Governor Andrew Cuomo provided additional detail on previously issued guidelines for the phased, regional reopening of New York businesses. Gov. Cuomo indicated that New York will apply a data-driven reopening methodology under which phased reopening decisions will be continuously evaluated based on a variety of statistical metrics. New York’s guidance is summarized below, and our memorandum, Return-to-Work Considerations for Employers, provides additional considerations for employers as they develop plans to reopen workplaces.
 
Reopening. New York will reopen businesses under a phased, regional reopening process. Gov. Cuomo said that “May 15 is a possible reopening” start date, which is when the New York State on PAUSE executive order is currently set to expire. Assuming the New York State on PAUSE executive order is not extended, New York reopening decisions will consider COVID-19-related statistics that target four key metrics: (i) the number of new infections; (ii) healthcare system capacity; (iii) diagnostic testing capacity; and (iv) contact tracing capacity. These key metrics—and consequently, reopening decisions—will be analyzed for each New York region. The gating metrics for a region to reopen and stay open are below.

• Number of New Infections. Regions must report:
  • 14 days of continuous decline in total COVID-19 hospitalizations and deaths on a 3-day rolling average. For regions with “few” COVID-19 cases currently, the region cannot exceed 15 new COVID-19 cases or 5 new COVID-19 deaths on a 3-day rolling average.
  • Fewer than 2 new COVID-19 patients admitted per 100,000 residents per day.
• Healthcare Capacity. Regions must have:
  • At least 30% of total hospital and ICU beds available.
  • For every hospital, at least 90 days of personal protective equipment stockpiled.
• Diagnostic Testing Capacity. Regions must:
  • Conduct 30 COVID-19 tests for every 1,000 residents per month.
• Contact Tracing Capacity. Regions must:
  • Have at least 30 contact tracers for every 100,000 residents.

If a region meets the above criteria, and the COVID-19 rate of transmission (also referred to as R₀) is below 1.0, the region will be reopened in phases. If the COVID-19 rate of transmission increases above 1.1, reopening will be halted.  Reopening will be phased, using a “risk versus reward” analysis which balances the risk of infection with the economic benefit of reopening a sector of businesses.

• Phase 1. Phase 1 will include construction, manufacturing, and select retail businesses that can accommodate curbside pickup.
• Phase 2. Phase 2 will include professional services, finance and insurance, retail, administrative support, and real estate/rental leasing businesses.
• Phase 3. Phase 3 will include restaurants, food services, and hotels and accommodation businesses.
• Phase 4. Phase 4 will include arts, entertainment, recreation and education.

Gov. Cuomo indicated that businesses will need to “reimagine” how to conduct business, by implementing personnel, workplace, and process changes such as:

• Adjusting workplace hours and shift design;
• Social distancing;
• Reducing non-essential travel;
• Requiring masks if in frequent contact with others;
• Implementing strict cleaning and sanitation standards;
• Conducting continuous health screenings to allow employees to enter the workplace;
• Conducting continuous tracing, tracking and reporting of COVID-19 cases; and
• Taking steps to reduce liability.

High Risk Regions. Based on the above reopening criteria, “high risk” regions in New York State which may be less likely to quickly reopen currently include:

• Western New York (including Buffalo);
• Capital District (including Albany);
• Mid-Hudson (including Westchester);
• Long Island; and
• New York City.

New York City. New York City currently fails to meet the reopening criteria for (i) new hospitalizations per 100,000 residents (5.41); (ii) share of hospital beds available (26%); and (iii) share of ICU beds available (21%).  Gov. Cuomo indicated that it could be a significant amount of time before certain regions, such as New York City and Long Island, may be able to open, saying, “If upstate has to wait for downstate to be ready, they’re going to be waiting a long time.”

The Coronavirus situation is fluid, and laws are changing rapidly. Our recent memoranda and other information discussing various aspects of Coronavirus can be found here.