COVID-19: New York and Other Northeast Council states take phased approach to reopening economy

On April 26, 2020, Governor Andrew M. Cuomo announced a phased approach to reopening the New York economy on a regional basis that will be implemented in coordination with other northeast states.  The other members of the northeast multi-state council − comprised of Connecticut, Delaware, New Jersey, New York, Pennsylvania, Massachusetts, and Rhode Island − have followed suit.  Below is an overview of the phased reopening plans under development in New York and the other member states.

The extent of future coordination among the northeast governors remains to be seen, but in an early example of formal cooperation, on May 3, 2020, the council announced a joint multi-state agreement to develop a regional supply chain for personal protective equipment (“PPE”), other medical equipment, and testing designed to aggregate demand among the states and reduce costs.  DLA Piper previously provided guidance concerning the “shelter in place” or “stay at home” orders issued in New York, Connecticut, New Jersey, and several other states, available here and here.

I. Overview of the New York Guidelines

On April 28, 2020, Governor Cuomo outlined guidelines for the 12-step plan to reopen New York on a regional basis (the “Guidelines”).  Based on CDC recommendations, regions in the state may only begin the reopening process when their hospitalization rates have declined for at least 14 days, among other public health-related criteria.  Governor Cuomo has indicated some upstate New York regions may enter Phase One of reopening in mid-May; the timeline for downstate regions, including New York City, remains uncertain.

On May 4, 2020, Governor Cuomo released additional detail concerning the industries eligible for reopening in Phases One through Four.  Phase One will include construction, manufacturing, and some retail with curbside pickup only; the second phase will include professional services, retail, administrative support, and real estate businesses; the third will include restaurants and hotels; and the fourth will include businesses related to the arts and entertainment as well as education.  Governor Cuomo has indicated that there will be two weeks in between phases to monitor the effects of the re-opening, including any increase in hospitalization and infection rates. 

The Guidelines also require businesses to develop plans to protect employees and consumers prior to reopening, which must include specific safety precautions:

• Adjust workplace hours and shift design as necessary to reduce density in the workplace;
• Enact social distancing protocols;
• Restrict non-essential travel for employees;
• Require all employees and customers to wear masks if in frequent contact with others;
• Implement strict cleaning and sanitation standards;
• Enact a continuous health screening process for individuals to enter the workplace;
• Continue tracing, tracking, and reporting of cases; and
• Develop liability processes.

II. Plans in neighboring states

Other northeast states also have announced roadmaps for easing lockdown measures and reopening businesses, although − as in New York − the timelines remain dependent on public health-related criteria.  And in Delaware, Massachusetts, and New Jersey, no date has been set for when reopening will begin.  The common theme is that businesses and industries will reopen in phases so that states can monitor developments and prevent resurgences of the virus.  However, the types of businesses included in each phase, and the timelines and geographical application of those phases, vary by state and undoubtedly will continue to evolve.

Connecticut

On April 30, 2020, Governor Ned Lamont announced a phased approach to reopening Connecticut’s economy beginning on May 20.  Like New York’s Guidelines, Connecticut’s plan includes a 14-day decline in hospitalizations as a threshold requirement to begin the reopening process.  Governor Lamont also outlined the businesses eligible for reopening at limited capacity in the first phase, contingent upon those businesses meeting specified criteria.  The list includes outdoor restaurants (“outdoor only - no bar areas”), retail establishments previously deemed non-essential, museums, the outdoor areas of zoos, university research programs, hair and nail services, and “offices.”  Even after reopening commences, Connecticut will encourage office workers “to continue work from home where possible.”

Delaware

In Delaware, Governor John Carney announced a plan to restart Delaware’s economy in three phases, with teleworking encouraged through the end of Phase Two and capacity restrictions to facilitate social distancing through the end of Phase Three.  Delaware’s shelter in place order remains in effect until May 15 or “until the public health threat is eliminated.” On May 5, 2020, Governor Carney announced that some small businesses would be permitted to resume limited operations effective May 8, 2020, prior to the commencement of Phase One.  These  “interim steps” include permitting some small retailers to resume business via curbside pick-up only, and allowing hair care services to be provided to workers at essential businesses under strict hygiene conditions.

Massachusetts

On April 28, 2020, Governor Charlie Baker extended the closure of all nonessential businesses in Massachusetts through May 18.  Governor Baker simultaneously announced the formation of a reopening advisory board, which is tasked with advising on strategies to reopen the economy in phases based on health metrics.  Although the advisory board’s report is due to Governor Baker on May 18, it is unclear when the state’s initial reopening phase will begin, and the administration has emphasized that “public health data and guidance from health care experts will dictate the timeline.”

New Jersey

Although Governor Phil Murphy has not yet set an expiration date for New Jersey’s stay-at-home order, on April 27, 2020, he announced a six-part plan to reopen the state, called “The Road Back: Restoring Economic Health through Public Health.”  Governor Murphy also formed a related “Restart and Recovery Commission” to advise his administration.  The commission will advise on the timing of the reopening of nonessential businesses in the state and “short-term and long-term economic issues as well as areas such as public health, workforce issues, and transportation.”

Pennsylvania

Governor Tom Wolf unveiled a three-phased plan to reopen Pennsylvania targeted to begin on May 8, 2020.  The phases are broken down into three colors—red, yellow, and green—that will be driven by health-data analytics to gradually loosen restrictions in place from the state’s stay-at-home and business closure orders.  Similar to New York, phases will be contingent upon different conditions in a given county or region.  As such, western Pennsylvania and rural counties are more likely to open sooner than Philadelphia and the eastern counties closer to the Delaware River where infection rates per capita are significantly higher.

Rhode Island

On April 27, 2020, Governor Gina M. Raimondo announced a framework for reopening Rhode Island’s economy.  The framework includes three phases, the first of which is set to begin on May 9.  In the initial phase, some offices will be allowed to have a limited number of employees on site, and retail locations will be permitted to open with restrictions, as will childcare facilities.  Nonetheless, the framework states “everyone who can work from home should still work from home” and requires social distancing throughout Phase One.  Phase Two allows for reopening of hair salons, retail, and other “close-contact” businesses along with some dining-in at restaurants.  Phase Three is supposed to “lift some of the tightest restrictions” on businesses, but the framework does not specify which restrictions or how that will be accomplished.

III. Questions and commentary

These developments raise a number of immediate questions and considerations for businesses operating in the northeast region:

• What enforcement approach will the individual states take with respect to the reopening criteria? 
• As reopening commences and summer approaches, how will member states react if they receive a significant number of visitors from an area nearby that remains under more restrictive measures?
• Will businesses that are not permitted to reopen until later phases go to court to seek judicial review of these determinations?

We are continuing to monitor developments impacting businesses in the northeast region and will be providing regular updates. Although the timeline for reopening may vary, businesses are encouraged to start planning and preparations now.

If you have any questions regarding these new developments, please contact your DLA Piper relationship attorney or any of the authors of this alert.  Please visit our Coronavirus Resource Center and subscribe to our mailing list to receive alerts, webinar invitations, and other publications to help you navigate this challenging time.

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.