New York City Provides Guidance for Phase Two Reopening of Offices

June 22, 2020
June 29, 2020 Update. On June 28, 2020, New York City (“NYC”) updated its guidance, Reopening New York City: Frequently Asked Questions What Offices Need to Know. The new guidance, which covers when an infected employee may return to the office, has been incorporated into this updated post.
 
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On June 22, 2020, New York City entered Phase Two of reopening, in which offices in NYC are permitted to reopen with modifications and restrictions. As discussed in our memorandum, COVID-19 Pandemic—New York Provides Guidance on Phase Two Reopening, New York State (“NYS”) has also issued reopening guidance for offices permitted to reopen in Phase Two. NYC’s guidance is similar to NYS’s guidance and seeks to answer key questions about reopening offices in NYC, as detailed below. NYC intends to educate businesses about how to comply with reopening requirements, and City inspectors may visit businesses to promote compliance.

The NYC guidance explains that although offices “may be able to reopen [their] worksites . . . the best way to reduce the spread of COVID-19 and protect employees is to continue to work from home as much as possible.” The guidance encourages employers to “[c]onsider whether there are other changes [they] can make to [their] operations to allow as many employees as possible to work from home.” 

Though NYC’s guidance mostly reiterates NYS’s guidance regarding social distancing, cleaning and disinfecting, employee hand hygiene and face coverings in the workplace, NYC’s guidance does include certain additional guidance, as outlined below.
 
Screening, Testing and Contact Tracing
 
In accordance with NYS reopening guidelines, employers in NYC must conduct daily health screening of any employee or visitor entering the workplace. NYC encourages employers to review the NYC Department of Health and Mental Hygiene’s Screening Tool and Model Log for screening and documentation examples.
  • Employee Refusal to be Screened. Employers should explain to employees that screening is in place to protect them, their coworkers and their customers from the spread of COVID-19. If an employee refuses to be screened, an employer may discipline that employee, but the nature of such discipline will depend on the employer’s policies and any rights provided under collective bargaining agreements.  Please note, as described in our memorandum, EEOC Releases Updated Guidance to Employers Regarding ADA-Compliant Practices During the COVID-19 Crisis, employees may request alternative screening methods due to medical conditions.  
     
  • Confidentiality. NYC’s guidance states that to the extent employers record employee medical information obtained from screenings, the employers “must maintain” that information in files that are separate from other personnel files” and “must protect the confidentiality of the medical information.” In addition to this guidance, however, NYC’s guidance also reiterates NYS’s guidance that “[b]usinesses must document that they have reviewed the responses to the[] daily health screening assessments” and are “prohibited from keeping records of employee health data (e.g. temperature data). ”Though prohibited in New York, as described in our recent blog post, if employers keep records of employee health data such as temperature screenings, they may be subject to additional federal confidentiality and retention requirements.  Accordingly, employers should review the federal, state and local guidance that applies to their jurisdiction in addition to the NYC guidance.
    • Employers must notify public health officials if they learn of an employee who is a confirmed or suspected case. Additionally, supervisors and managers may be informed regarding necessary restrictions on work or duties of an employee and necessary accommodations; first aid and safety personnel may be informed, when appropriate, if someone requires emergency treatment; and government officials investigating compliance with federal discrimination law must be provided relevant information on request.
    • Employers should not disclose health information, including the reason why an employee may be sent home, to other employees.
    • If an employee tests positive for COVID-19, employers may notify customers and clients that they may have been exposed, but should not share the name of the employee who has tested positive.
       
  • Return to Work. NYC guidance does not require employees to get a COVID-19 diagnostic or antibody test before returning to work. NYC, however, recommends that all New Yorkers receive COVID-19 diagnostic testing whether or not they have had symptoms or are at increased risk. It is not currently recommended that people who previously tested positive get retested, unless advised to do so by public health guidance or a by a health care provider. And, as previously discussed in our recent memorandum, the EEOC has stated that employers are not permitted to require antibody testing before allowing employees to re-enter the workplace under the Americans with Disabilities Act. 
     
    In accordance with NYS Reopening guidance, employees who have been out sick should not return to the office after isolation until it has been at least 10 days since their symptoms started, or if no symptoms develop, 10 days after their first positive test. 
Commuting and Travel
  • Commuting. Employers are encouraged to allow employees to telecommute if possible; otherwise, employers should encourage staff to walk or bike to work. NYC also encourages employers to create staggered schedules for those who are commuting by subway or bus, so that they may avoid crowds. Employers should remind employees to allow for extra time to commute, and establish flexible lateness policies so that employees can choose not to enter crowded subways and busses.
     
  • Events and Travel. For meetings and gatherings that would normally require travel, employers should promote the use of videoconferencing or teleconferencing, when possible. At this time, employers should consider cancelling, adjusting, or postponing events that can only occur in-person. 
Communication and Training
NYC has free posters and flyers for employers to use to remind employees about COVID-19 safety protocols. Employers are encouraged to post signs that can be easily seen and read by workers, customers and clients. To train employees on COVID-19 safety protocols, NYC recommends the following:
  • Monitor how well staff are implementing COVID-19 safety protocols.
  • Post a safety plan in a place where employees can review it.Distribute the plan to employees so that they know what’s expected.
  • Repeat training and education as needed, and have a mechanism in place for employees to ask questions and raise concerns.
  • Be sure to train new hires, interns, volunteers, temporary workers and contractors.Use multiple means of communications including email, posting on bulletin boards and announcements.
  • Communicate in languages that employees understand.
As the COVID-19 situation continues to develop, and federal, state and local governments issue additional guidance, employers need to be cognizant of new guidance and requirements. For more information, please visit S&C’s page regarding Coronavirus updates.