skip to main content

September 9, 2020

Stroock Special Bulletin

By: Howard S. Lavin, Elizabeth E. DiMichele, GraceAnn Caramico

The “New York Forward Plan” announced by Governor Andrew Cuomo permits non-essential businesses to reopen in phases on a regional and industry-specific basis, as each region meets certain criteria.  

As  New York regions and segments of the economy proceed through the four phases of reopening, businesses should outline plans for the return to on-site work, following applicable guidance, including from the New York State Department of Health (Health Department), the U.S. Centers for Disease Control and Prevention (CDC), the U.S. Occupational Safety and Health Administration (OSHA) and the U.S. Equal Employment Opportunity Commission (EEOC).

As of July 20, 2020, New York City met the required metrics to begin Phase Four of reopening, which includes schools and low-risk arts, entertainment, and recreation businesses. New York City was the last region to enter Phase Four of reopening. While Phase Two of New York Forward allowed for the reopening of businesses that take place in an office setting, employers in office settings should continue to regularly monitor federal, state, and local public health communications concerning COVID-19 and adapt their plans accordingly as they take steps to resume their in-office operations. Employers should ensure that their employees have access to current public health information and should distribute and conspicuously post safety plans on-site.  

Back-to-work office plans should include certain key elements, including those discussed below.

Limits on Occupancy 

At no time during Phase Two of Reopening should the total number of occupants reach more than 50% of the maximum occupancy set by the building’s certificate of occupancy.

In addition, interpersonal contact and congregation should be limited whenever possible. This can be achieved by staggering employees’ workplace hours, reducing in-office staff (e.g. A/B teams), reintroducing staff back to the office in waves, or encouraging employees to work from home when feasible.  

In-person gatherings should be substituted with video or teleconferencing. If video or teleconferencing is not practicable, in-person meetings should be held in open, well-ventilated spaces and individuals should continue to social distance. Close off conference rooms that do not permit appropriate social distancing. 

Mandatory Health  Screening

Mandatory health screening of employees should take place daily. Where practicable, this health screening should apply to visitors. This health screening can take place remotely or on-site, with a preference for remote screening before an employee reports to the office. At a minimum, this screening requires determining whether the employee or visitor has: 

  • 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;
  • tested positive for COVID-19 in the past 14 days; and/or 
  • has experienced any symptoms of COVID-19 in the past 14 days.

Some employers are directing their employees to take their temperature at home and then self-certify upon arriving to work that their temperature was less than 100.4 degrees Fahrenheit and that they answered no to the three-part inquiry noted above. Other employers are forgoing the temperature check, reasoning that readings can be unreliable and that individuals can be asymptomatic and still be infected.   

If the screening takes place on-site, it should be conducted at or near the building entrance.  Moreover, employers must ensure that all involved use social distancing and/or personal protective equipment (PPE) and touchless thermometers. Although difficult from a logistics standpoint, screenings should be as private as possible, and COVID-19 risk must not be determined based on any protected characteristic, such as race, sex or national origin.  

At all times, confidentiality of medical records from health screenings, including temperature checks, must be maintained, and the files must be stored separately from an employee’s personnel file. Health screenings should be reviewed by employers daily, with employers developing a protocol for when and how such screenings are reviewed. An employee who screens positive for COVID-19 symptoms should not be allowed to enter the office and should be sent home with instructions to contact their healthcare providers for assessment. Again, these health screening practices should apply to office visitors, as well.  

If an employee is symptomatic upon arrival at work or becomes sick at work during the day, the employee should be immediately separated from others in the workplace and sent home. Employers should implement a procedure for safe transportation of a sick employee to the employee’s home or a healthcare facility. Employers should also develop an action plan for suspected or confirmed cases of COVID-19 among its employees, which should include: 

  • closing off areas used by the sick employee and performing a deep cleaning and disinfecting of the area if it is fewer than seven days since the sick employee has been in the facility; 
  • determining which employees and visitors may have been exposed to the virus, informing these individuals about the possible exposure, and similarly advising the landlord or building management if business is conducted in a shared building; and
  • requiring employees who had close contact with the sick employee for more than 15 minutes to self-quarantine for 14 days.  

When informing others about possible COVID-19 exposure, employers should not share the name of the sick employee in accordance with applicable provisions of the Americans with Disabilities Act (ADA) and Health Insurance Portability and Accountability Act (HIPAA).  Positive cases of COVID-19 should be reported to the local health department by employers.

Social Distancing and Related Practices

Social distancing (maintaining a distance of at least 6 feet) must be practiced by all employees and visitors of the business. Employers should consider closing non-essential common areas or modifying seating arrangements to ensure social distancing of those entering the premises. Employee workstations, seating areas and desks should ideally be 6 feet apart in all directions. If employee workstations, seating areas and desks are shared, the areas must be cleaned and disinfected between uses. However, shared work spaces or “hoteling” should be limited where possible, and measures for limiting shared use of equipment, such as keyboards and phones, should be put in place. When social distancing between employee work areas is not possible, face coverings must be worn by employees or physical barriers must be provided between employee work areas. Acceptable forms of physical barriers include cubicle walls or Plexiglas.

Employers must provide acceptable face coverings to employees while at work at no cost to the employee. Face coverings should also be provided to visitors. Moreover, employers must train employees on how to adequately put on, take off, clean (as applicable), and discard face coverings and other personal protective equipment (PPE). Face coverings should be worn in all common areas, including elevators and lobbies, when traveling around the office, and when physical barriers are not available or social distancing is not possible.

Redirect foot traffic with signs or tape so that, where possible, employees are directed to walk in one direction through hallways to one entry way and one exit way. Distance markers may also be helpful in denoting 6 feet around employee work areas or in public areas where people tend to congregate. Employees should remain near their work areas as often as possible.

Employees should limit the use of smaller spaces by multiple individuals at one time. Small spaces may include elevators, elevator banks, supply or copy rooms, kitchens, restrooms and personal offices. Ventilation of these spaces with outdoor air should be utilized to the greatest extent possible. Block or limit access to rooms that do not allow for social distancing, limit access to every other sink or stall in restrooms, and disable hand dryers in rest rooms, providing paper towels and hand sanitizer instead.

If operating in a shared building, as is typical in Manhattan, employers should speak to their landlords or building management to understand what policies the building plans to implement to help ensure the safety of its tenants when entering and exiting the building, in the building’s common spaces, and with respect to ventilation.

Procedures for Investigating and Recording COVID-19  

Under recent guidance issued by OSHA, COVID-19 is a recordable illness, and thus employers are responsible for recording cases of COVID-19, if the confirmed case of COVID-19 is work-related and the case involves one or more of the following general recording criteria: days away from work, death, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.

As a result, employers will now have to investigate COVID-19 cases and make a determination of work-relatedness. This means, going forward, upon learning of an employee’s COVID-19 illness, an employer should: 

  • ask the employee (i) how he/she believes he/she contracted the virus and (ii) what activities at work and outside of work may have resulted in the illness (but still be mindful of employee privacy); and
  • review the employee’s work environment for potential exposure.

OSHA acknowledged that, given the nature of the disease and its community spread, in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace. Therefore, if, after the reasonable and good faith inquiry described above, the employer cannot determine whether it is more likely than not that exposure in the workplace played a causal role with respect to a particular case of COVID-19, the employer does not need to record that COVID-19 illness.  

Policies Promoting Good Hygiene 

Employees should continue frequent hand washing with soap and hot water for at least 20 seconds, or if not available, with hand sanitizer containing at least 60 percent alcohol; avoiding touching their eyes, nose and mouth; covering their mouth and nose with a tissue or inside of the elbow when coughing or sneezing; avoiding large gatherings; staying at least 6 feet apart from others when possible; and using cloth face coverings when social distancing is not possible. To remind employees, businesses should post signs, such as those available from the CDC and OSHA.     

Hand sanitizer in touch-free dispensers, when possible, should be placed in all convenient common area locations. Receptacles should be placed around the property for the disposal of tissues, paper towels, face coverings, PPE and other soiled items.

Procedures to Maintain Business Operations

Employers should identify a coordinator who will be responsible for COVID-19 issues and their impact at the workplace. This coordinator, as well as methods for effective communication with the coordinator, should be identified to employees.

Subject to applicable legal requirements, employers should implement flexible and supportive sick leave and work-from-home policies that allow employees to stay home to care for a sick family member and take care of children amid school and child care closures or to protect higher-risk employees. While it is generally preferable to require a COVID-19 test result or healthcare provider’s note to validate an employee’s illness, qualify for sick leave, or return to work, be mindful of the availability of healthcare providers to make such assessments. To some degree, healthcare provider offices and medical facilities are still extremely busy and may not be able to provide such documentation in a timely manner. Because employee absenteeism may rise during this time, employers should consider cross-training employees so that essential business functions can continue with a smaller number of employees.

On-site business operations should be resumed in phases, beginning with job functions necessary for continuous operations and those that can only be performed on-site. As outlined above, employers should consider limiting the number of employees, hours and customers available to be served (if applicable) when first reopening so as to provide businesses with the ability to adjust to changes.

Non-essential business travel by employees should be limited, and employers should give guidance to their employees on limiting personal travel and require that employees follow current applicable CDC guidance.  

Deliveries and pickups to the business should occur in one designated area. Again, this may be a topic employers need to discuss with their landlord or building management. Employers should consider closing non-essential common areas, such as coffee bars and pantries, prohibit the sharing of food and beverages, encourage employees to bring meals from home, and reserve sufficient space for employees to eat meals while maintaining social distance. 

Cleaning Protocols 

It is imperative that employers, in conjunction with their building’s landlord or building management, develop cleaning and disinfection protocols. Cleaning and disinfection of high-touch areas must occur at least daily or more frequently as necessary. Logs detailing the cleaning and disinfection of the property must be kept.  

Employers should create cleaning and disinfection policies in the event an individual is confirmed to have COVID-19, such as closing off areas used by the sick individual, ventilating the areas, waiting 24 hours before cleaning and disinfecting the areas, and coordinating with the building to close shared building spaces used by the sick individual.  

Conclusion

Employers and businesses should effectively communicate these new policies and procedures to all employees, as well as provide training, as necessary, to ensure understanding and compliance.
  
Developing reopening plans under this framework, guided by the Health Department, CDC and OSHA, will assist businesses transitioning back to on-site work and maintain the health and safety of their workforce, clients and business associates.  Companies should continue to stay well-informed of the most current federal, state and local information, strive to anticipate issues, and seek legal counsel when making decisions that impact the workplace and their employees.

____________________________________________

For More Information:

Howard S. Lavin

Elizabeth E. DiMichele

GraceAnn Caramico

This Stroock publication offers general information and should not be taken or used as legal advice for specific situations, which depend on the evaluation of precise factual circumstances. Please note that Stroock does not undertake to update its publications after their publication date to reflect subsequent developments. This Stroock publication may contain attorney advertising. Prior results do not guarantee a similar outcome.