All (clean and sanitized) hands on deck: What New York City office-based employers need to know to prepare for Phase Two

On April 26, 2020, Governor Andrew Cuomo announced a four-phased approach to reopening businesses in New York State in the wake of the coronavirus disease 2019 (COVID-19) pandemic. On June 8, 2020, New York City entered into Phase One, which included industries such as construction, agriculture, manufacturing, retail trade, and wholesale trade.  Office-based businesses, where the core function of business activity takes place within an office setting, will be permitted to reopen in the second phase of this plan (“Phase Two”) if infection and hospitalization rates remain stable, among other data-driven criteria.

Office-based employers in New York City are strongly encouraged to begin preparing for Phase Two by, at a minimum, familiarizing themselves with New York State’s Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency, issued on May 28, 2020 (available in summary format here). As discussed below, employers in office settings must take certain proactive measures to help stop the spread of COVID-19 in the workplace. From providing facial coverings to employees and implementing mandatory health screening questionnaires for all employees and visitors entering the office, to notifying local health department officials of positive COVID-19 cases, employers are urged to develop a plan to carry out these requirements before reopening.

What is an office-based workplace?

The Phase Two guidelines for office-based workplaces apply to essential and non-essential businesses that perform work in an office setting, including but not limited to the following sectors:

• Professional services;
• Nonprofit;
• Technology;
• Administrative support; and
• Higher education administration (excluding full campus opening).

Although “professional services” is undefined in the new guidance, the term typically includes occupations in the service sector requiring specialized training, such as lawyers, accountants, management consultants, engineers, architects, financial planners, investment managers, and IT consultants.  Moreover, the term “administrative support” typically includes individuals who assist executives in an office setting with the day-to-day running of the business by performing clerical and administrative functions.

These guidelines expressly do not apply to medical offices.

Requirements and recommended practices for office-based workplaces

Before New York City enters into Phase Two, employers are encouraged to assess their existing policies and coordinate with necessary third parties (such as building landlords, vendors and cleaning companies) to prepare their offices and ensure compliance with the relevant guidelines, certain portions of which are summarized below.

Physical distancing

To promote physical distancing, the Phase Two guidance requires employers to do the following:

• Limit occupancy: Limit the total number of occupants to no more than 50 percent of the maximum occupancy at any given time for a particular area as determined by the applicable certificate of occupancy.
• Reconfigure the workplace
  • Ensure that a distance of at least six feet is maintained among individuals at all times (unless a shorter distance is required to perform the work activity safely).
  • Modify all seating areas, including workstations, desks and indoor and outdoor seating areas (eg, reception areas) to ensure that individuals are at least six feet apart in all directions (eg, rearranging chairs and tables).
  • If distancing is impossible, require the use of face coverings or install physical barriers, such as plastic shielding walls, strip curtains, plexiglass or similar materials in accordance with the US Occupational Safety and Health Administration (“OSHA”) guidelines.
  • Consider eliminating shared workspaces (or at a minimum clean and disinfect these areas between users) and implement policies to limit the sharing of objects such as laptops, notebooks, touchscreens and office supplies.
  • Require that confined spaces within the office, such as elevators, supply rooms and personal offices, not be occupied by more than one individual at a time unless all individuals in the space wear acceptable face coverings; and even when face coverings are used, occupancy not to exceed 50 percent of the maximum capacity of the space.
  • Close communal areas and high touch areas, (such as vending machines and communal coffee machines), along with non-essential common areas (eg, fitness centers, pools, game rooms)
  • Post social distancing markers that identify six feet of spacing in commonly used areas (eg, clock in/out stations, health screening stations and restrooms), and consider reducing bidirectional foot traffic by using tape or signs with arrows in aisles, hallways or spaces.
• Adjust workplace policies and operations
  • Limit in-person gatherings, including meetings, conferences and other events, and use video or teleconferencing whenever possible. If in-person gatherings are necessary, convene such meetings in well-ventilated areas with appropriate social distancing protocols.
  • Implement measures to reduce interpersonal contact by, for example, (i) adjusting workplace hours; (ii) encouraging employees to work from home when possible; and (iii) staggering arrival/departure times (and designing different areas for ingress and egress) to reduce congestion in lobbies and elevators.
  • Consider limiting all non-essential travel.
  • Post signs inside and outside the office that remind employees to adhere to (i) physical distancing instructions; (ii) guidance about properly storing and discarding personal protective equipment (“PPE”); and (iii) personal hygiene and cleaning and disinfection guidelines, among other things. Posters that meet these requirements are available from the New York State Department of Health (“DOH”), the New York City Department of Health and Mental Hygiene, and the US Occupational Safety and Health Administration.

Personal protective equipment

The Phase Two guidance further requires employers to:

• Provide acceptable face coverings at no cost to their employees and contractors – the guidance encourages employers to keep an adequate supply of face coverings if replacements are needed. The US Centers for Disease Control and Prevention (“CDC”) has issued guidance on cloth face coverings and other types of PPE, including instructions on their use and cleaning. Although employees can choose to wear their own acceptable face covering, the New York guidelines indicate that employers cannot require employees to provide their own.
• Train workers on how to adequately put on, take off, clean (as applicable), and discard PPE.
• Instruct employees and any visitors to wear face coverings in common areas and when moving throughout the office.

Hygiene, cleaning and disinfection

• Adhere to hygiene, cleaning and disinfection requirements as recommended by the CDC and the DOH. Notably, the New York guidelines indicate that employers must keep a log that documents the date, time and scope of cleaning and disinfection.
• Provide hand hygiene stations in the office for (i) handwashing (provide soap, warm running water, disposable paper towels, and a lined garbage can) and (ii) hand sanitizing (provide an alcohol-based sanitizer containing at least 60 percent alcohol), with such stations to be available in common areas of the office and sanitizer dispensers to be touch-free where possible.
• Provide appropriate cleaning/disinfecting supplies for shared and frequently touched surfaces and encourage employees to clean these areas before and after use, followed by washing and/or sanitizing their hands.
• Rigorously clean and disinfect the office, with cleaning to occur at least after each shift, daily, or more frequently as needed. Please refer to DOH’s Interim Guidance for Cleaning and Disinfection of Public and Private Facilities for COVID-19 for detailed guidance on cleaning protocols.
• Follow CDC guidance if an employee is suspected or confirmed to have COVID-19, which includes closing off the areas used by the person who is suspected or confirmed to have COVID-19. According to the New York guidelines, employers do not need to cease operations if it is possible to close off the affected area.

Screening and testing

• Screen employees, contractors, and, where practicable, visitors, each day, with “screeners” to be appropriately protected from potential exposure and trained by those who are familiar with CDC, DOH, and OSHA protocols. The New York guidelines indicate that unless an agreement with a building manager is reached, employers are responsible for assessing their own employees and visitors, and that:
  • screening practices may be performed remotely or on site;
  • screening should be coordinated to prevent employees or visitors from intermingling before completing the screening; and
  • at a minimum, a health screening must determine (eg, via a questionnaire) whether the employee has:
    • (a) knowingly been in close or proximate contact in the past 14 days with anyone who has tested positive for COVID-19 or who has or had symptoms of COVID-19;
    • (b) tested positive for COVID-19 in the past 14 days; and/or
    • (c) has experienced any symptoms of COVID-19 in the past 14 days.
• Responses are to be reviewed and documented daily, with employers to identify a point of contact for workers and visitors to inform if they later experience COVID-19-related symptoms.
• In addition to the screening questions, daily temperature checks may be performed per the EEOC and DOH guidelines. However, the New York guidelines indicate that employers are prohibited from keeping records of employee health data, including temperature readings.
• If an employee screens positive for COVID-19, the New York guidelines provide that the employee should not be allowed to enter the office and should be sent home with instructions to contact his or her healthcare provider for assessment and testing. Significantly, in a departure from previous guidance, pursuant to the Phase Two guidance employers must immediately notify local health department officials about any positive case and cooperate with officials for contact tracing purposes. This includes notifying potential contacts, such as workers, visitors and/or customers (if known) who had close contact with the individual.

• The New York guidance outlines several testing and screening scenarios employers may face and suggested approaches on how to respond:
  • If a person has COVID-19 symptoms AND EITHER tests positive for COVID-19 OR did not receive a test, the individual may only return after completing at least 14 days of self-quarantine.
  • If a person does NOT have COVID-19 symptoms BUT tests positive for COVID-19, the individual may only return after completing at least 14 days of self-quarantine.
  • If a person has had close contact with a person with COVID-19 for a prolonged period of time AND is symptomatic, the individual may only return to work after completing at least 14 days of self-quarantine.
  • If a person has had close contact with a person with COVID-19 for a prolonged period of time AND is NOT symptomatic, the individual must complete a 14 day self-quarantine.

Communication plan for employers

• Affirm via an online form that they have read the Phase Two guidance and understand their obligations to operate in accordance with them.
• Prepare and conspicuously post completed safety plans on site. The DOH has provided a template safety plan to help employers in preparing their own plan.
• Develop a communications plan for employees and visitors, provide a consistent method to relay updated information, and train all workers on new protocols.
• Provide building managers/owners with a list of essential visitors expected to enter the building.

Conclusion

With its interim Phase Two guidance, New York State provides a much-awaited roadmap for navigating the road to re-entry for office-based workplaces in New York. Employers may implement protocols that exceed Phase Two’s minimum requirements, and, given the interim nature of the guidelines, are strongly encouraged to stay updated so as to continuously ensure compliance with all local, state, and federal requirements.

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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.  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.