New York State lifts COVID-19 requirements for office-based workplaces

New York employers have faced a whirlwind of guidance as they continue to formulate plans to reopen office-based workplaces. Last year, employers in the state were required to comply with New York Forward COVID-19 reopening guidance, which we discussed here.  On June 8, 2021, the state issued updated Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency.

A week after revising the interim guidance, Governor Andrew Cuomo announced that COVID-19 restrictions in New York State could be lifted across various industries, including businesses that operate in office spaces.  Governor Cuomo’s June 15, 2021 announcement followed a highly anticipated milestone as 70 percent of adult New Yorkers have now received the first dose of the COVID-19 vaccination series.

Given the turning point in vaccination rates, previously issued requirements for office-based workplaces, including the updates issued on June 8, 2021, are now optional.  However, consistent with current CDC guidance, unvaccinated employees must continue to wear masks.  As it stands, office-based employers have a choice: They can adhere to the archived guidance, as discussed below; immediately lift some or all of the previous restrictions; or implement other health precautions to protect their employees.

This alert summarizes the significant changes to the updated guidance.

Physical distancing

• Occupancy
  • The updated guidance eliminates most of the capacity restrictions and incorporates New York’s adoption of CDC guidance, allowing fully vaccinated employees to return to offices at full capacity.  Fully vaccinated is defined as having completed the COVID-19 vaccination series at least 14 days prior to the date of return.
  • Fully vaccinated employees are not required to socially distance or wear face coverings.
  • Employers may accept proof of vaccination status through paper form, digital application or the state’s Excelsior Pass – digital proof of vaccination status and any recent negative diagnostic test results.
• Reconfigure the workspace
  • According to the updated guidance, physical distancing is no longer required, except for unvaccinated employees or where the vaccination status is unknown.
  • Employers may reconfigure employee seating, provide face coverings or install physical barriers compliant with the US Occupational Safety and Health Administration (OSHA).
  • Shared workspaces can be limited to the extent practicable. If they remain in use, they must continue to be cleaned and disinfected between users.
  • Small spaces within the office, such as elevators, supply rooms and personal offices, can now be occupied by more than 50-percent capacity if all individuals in the space are vaccinated or if the space is designed for use by a single occupant. However, occupancy may not exceed the capacity required to maintain social distance, if necessary, as set forth by the updated guidance.
• Adjust workplace policies and operations
  • According to the updated guidance, efforts to reduce interpersonal contact are now recommended, though not required.
  • Employers should hold in-person meetings in open, well-ventilated spaces and ensure that individuals maintain six feet of social distance between one another or wear appropriate face coverings.
  • Employers may reopen non-essential common areas in accordance with applicable industry-specific guidance.
  • Employers may continue to permit employees to work from home when feasible.

Screening and testing

• The updated guidance requires employers to screen individuals prior to entering the office, but it no longer mandates a daily health screening questionnaire.
  • Employers can meet the health screening requirements by posting signage at a point of entry, by telephone, by electronic survey or by email/website.
  • An individual should not enter the office if they (1) have recently (ie, within the last 48 hours) experienced any symptoms of COVID-19; (2) have had close contact, or proximate contact as determined by health authorities, in the last 10 days with any person confirmed by a diagnostic test, or suspected, based on symptoms, to have COVID-19; or (3) have tested positive for COVID-19 in the last 10 days.
  • Significantly, fully vaccinated individuals and those who have fully recovered from a lab-confirmed COVID-19 diagnosis within the past three months do not need to be screened for close contacts with COVID-19. The new guidance requires that individuals monitor COVID-19 symptoms for 14 days following any exposure.
  • Employers must require that employees immediately disclose any changes to their responses to any of the aforementioned questions.
  • Employers are prohibited from keeping records of employee health data (eg, the specific temperature data of an individual), but are permitted to maintain records that confirm that individuals were screened and the result of such screening.

New York employers now have greater flexibility in structuring their return to work plans, which range from strict compliance with previously issued guidance to completely lifting prior restrictions.

If you have any questions regarding these developments, please contact your DLA Piper relationship attorney, any member of the DLA Piper Employment group or any of the authors of this alert.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.