Readying for The Return: New York Requires Mandatory Screening for Reopening Phase 1 Employers

On May 20, 2020, the New York State Department of Labor (“NYSDOL”) published guidance for Phase 1 reopening employers, requiring mandatory health screening assessments before employees begin work each day and for essential visitors (not customers). The guidance establishes that Phase I employers must inquire as to whether employees and/or visitors have experienced the following: (1) COVID-19 symptoms in the past 14 days; (2) Positive COVID-19 test in the past 14 days; and/or (3) Close contact with a confirmed or suspected COVID-19 case in the past 14 days.

On site screeners should be trained by employer-identified individuals familiar with Centers for Disease Control (“CDC”), Department of Health and Occupational Safety & Health Administration protocols, and wear protective equipment, including at a minimum, a face covering. Screening employers must also have a plan for cleaning, disinfection and contact tracing in the event of a positive case.

Employees who present with COVID-19 symptoms should be sent home to contact their healthcare provider for medical assessment and COVID-19 testing. If tested positive, an employee may only return after completing a 14-day quarantine. Employees who present with no symptoms but have tested positive in the past 14 days may only return to work after completing a 14-day quarantine. Employees who have had close contact with a confirmed or suspected person with COVID-19 but are not experiencing any symptoms should inform their employer and may be able to work with additional precautions, including regular monitoring for symptoms and temperature, required face covering at all times and appropriate social distancing.

Assessment responses must be reviewed daily, the review must be documented or logged and kept confidential. Additional guidance for screening, and guidance for other requirements Phase 1 employers must meet to reopen are provided for each industry set to reopen. Phase 1 industries are construction; agriculture, forestry, fishing and hunting; retail trade; manufacturing; and, wholesale trade.

The guidelines apply to all non-essential businesses and business activities about to reopen, and essential businesses and business activities already open in New York.

NYSDOL’s website provides links to summary guidelines, read and affirm guidelines, and print ready business safety plan templates for use by companies in each industry.

Eligibility for reopening by region is determined by seven (7) health metrics established based on advice from the CDC, World Health Organization, U.S. State Department and other health experts.  These are: decline in total hospitalizations, decline in deaths, new hospitalizations, hospital bed capacity, ICU bed capacity, diagnostic testing capacity and contact tracing capacity.

In addition to screening, to reopen Phase 1 employers must provide for physical distancing, protective equipment, cleaning and hygiene, and communication all as set forth in NYSDOL guidance for each industry. All are detailed on the NYSDOL website.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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