After meeting the seven core factors, eligible regions will reopen businesses in phases, with at least two weeks in between each phase.

On May 15, 2020, Governor Andrew Cuomo’s Executive Orders 202.6 and 202.8, which stopped all nonessential work in New York, will expire. New York will then shift to “New York Forward,” the state’s plan to reopen nonessential businesses and return people to work, without triggering renewed spread of COVID-19 or overwhelming the healthcare system.

Core Factors for Reopening

Pursuant to New York Forward, state and local officials will monitor seven core factors to determine if a region’s nonessential businesses can begin a phased reopening, discussed below. Essential businesses that are open will remain open. The core factors are:

Metric #1: Decline in Total Hospitalizations

Before a phased reopening begins, a region must experience a sustained decline in total net hospitalization over the course of a 14-day period.

Metric #2: Decline in Deaths

Before reopening, a region must experience a sustained decline in the three-day rolling average of daily hospital deaths over the course of a 14-day period.

Metric #3: New Hospitalizations

A phased reopening for each region will be conditioned on the occurrence of fewer than two new hospitalizations per 100,000 residents (measured on a three-day rolling average).

Metric #4: Hospital Bed Capacity

Phased reopenings will be conditioned on the hospital bed capacity in each region. Regions must have at least 30 percent of their total hospital beds available before a phased reopening can begin.

Metric #5: ICU Bed Capacity

Regions must have at least 30 percent of their ICU beds available before a phased reopening can begin. In addition, to ensure nurses and doctors have the personal protective equipment (PPE) they need, every hospital must also have at least 90 days of PPE stockpiled.

Metric #6: Diagnostic Testing Capacity

Phased reopenings will depend on the ability of each region to achieve 30 tests per 1,000 people per month.

Metric #7: Contact Tracing Capacity

Robust contact tracing programs must be in place before local governments consider easing restrictions. Contact tracing helps prevent the spread of COVID-19 by rapidly interviewing infected patients; identifying their close contacts; interviewing and alerting those contacts to the risk of infection; and instructing those contacts to quarantine or isolate for 14 days to prevent spreading COVID-19 to others.

Businesses Eligible for Phased Reopening

After meeting the seven core factors, eligible regions will reopen businesses in phases, with at least two weeks in between each phase. This allows state and local leaders to monitor the effects of the reopening and ensure hospitalization and infection rates are not increasing before moving to the next phase and permitting more economic activity.

Several regions such as the Finger Lakes, Mohawk Valley and Southern Tier have already met the seven core factors, and are eligible to begin phased reopening on May 18, 2020. Other regions such as New York City, Long Island and Mid-Hudson are not yet eligible for reopening.

The phase-in plan prioritizes businesses considered to have a greater economic impact and inherently lower risks of infection for the workers and customers, followed by other businesses considered to have less economic impact and those that present a higher risk of infection spread.

The four phases are broken down as follows:

Phase One

• Construction
• Manufacturing
• Retail (curbside pickup)
• Wholesale trade
• Agriculture, forestry, fishing and hunting

Phase Two

• Professional services
• Retail
• Administrative support
• Real estate/rental and leasing

Phase Three

• Restaurants/food services

Phase Four

• Arts/entertainment/recreation
• Education

Construction businesses that are allowed to reopen in Phase One include: (1) building equipment contractors; (2) building finishing contractors; (3) foundation, structure and building exterior contractors; (4) highway, street and bridge construction; (5) land subdivision; (6) nonresidential building construction; (7) residential building construction; and (8) utility system construction.

As these businesses reopen, they are not permitted to return to business as usual. Each business and industry must have a plan to protect employees and consumers, make the physical workspace safer and implement processes that lower risk of infection at the business.

Examples of measures to protect employees and customers include: adjustments to workplace hours and social distancing protocols; changes to the physical workspace, such as requiring all employees and customers to wear masks; and, finally, protocols for screening individuals when they enter the workplace and reporting confirmed positives to customers.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help companies plan, respond to and address this fast-moving situation. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Meghan DiPerna, Kenneth H. Lazaruk, Brian A. Shue, any of the attorneys in our Construction Group, members of the COVID-19 Strategy Team or the attorney in the firm with whom you are in regular contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.