Re-Opening NY Phase 1 & Phase 2 Requirements

Re-Opening NY:
What NY Employers & Owners Need to
Know
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Your Host:
Tiffany Donaldson, Esq. is a New York
attorney and the owner of Donaldson
Legal Counseling PLLC.
She focuses in:
 Business advising
 Business Formation
 Contracts
 Trademarks
 Employment Issues

Attorney Advertising
NY Re-Open Legal
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50 Question Q&A
on Re-Opening and
Employment
Employee
Disclosure and
Release
Draft NY Safety
Plan
Employee
Health
Questionnaire
Health
Questionnaire Log
Communication
Plan
Cleaning Policy
($250.00 Value)
Cleaning Log
Contact Tracing
Log
FFCRA Poster
Social Distancing
Posters
Optional
Temperature Check
by Employee
Document
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Donaldson Legal Counseling PLLC
Tiffany A. Donaldson, Esq., Principal
counsel@dlcesq.com
(301) 332-2354
438 41st Street, No. 3, Brooklyn, NY 11232

Agenda
• NY Safety Plan for Businesses
• Legal Considerations
• Mask Requirements
• Occupancy & Spacing Requirements
• Cleaning Requirements
• Posting Requirements
• Contact Tracing Requirements
• Health Questionnaire Requirements
• Optional Temperature Taking
• What to Do if an Employee Has a
Temperature
• What to Do if an Employee Tests
Positive For Covid-19
• Measures to Prevent Liability

Did You Know?
New York REQUIRES
All Businesses to have a Safety
Plan to Stop the Spread of
COVID 19
https://forward.ny.gov/industries-reopening-phase

The NY Safety Plan
Includes
• Occupancy Requirements
• Masks & Spacing
• Postings
• Communication Plan
• Cleaning Policy & Cleaning Log
• Contact Tracing Log
• Daily Health Questionnaires & Log

Why Follow
the Rules?
Is there any consequence to not
implementing the Safety Plan?
Can the Employer get Sued if an
Employee gets Coronavirus?

Worker’s Compensation
• Exclusive remedy for on-the-job injury or illness in
New York
• Employees generally barred from private lawsuit
against employer
• No determination that Coronavirus is an
“Occupational Disease.”
• Employee is likely required to show a direct link
between contracting Coronavirus and employment,
• Ordinary contact with co-workers likely not enough
to recover under Workers’ Comp

Right to a Safe Workplace
• OSHA - Occupational Safety and Health Act
• Employers with 10 or more employees must
furnish a place of employment “free from
recognized hazards that are causing or are
likely to cause death or serious physical
harm.”
• NYC also requires a safe workplace free from
known hazards – NYC Dept. of Consumer
Affairs Office of Labor Policy and Standards

Employers Must Take Reasonable
Actions to Create a Safe Workplace
Failure to provide a
Safe Workplace could
take a claim outside of
Workers
Compensation
Failure to follow state
rules on re-opening
could be used to prove
gross negligence or an
intentional tort

• MASKS
 Employers are REQUIRED to
provide Masks to workers.
 Workers can use their own
masks if they choose to.
 Any time personnel are less than
6 ft. apart from one another,
personnel must wear acceptable
face coverings.

Occupancy
• You MUST keep occupancy
under 50% of maximum
capacity for the space.
• Certificate of Occupancy will
tell you maximum capacity.

SPACE: 6 Feet Apart
• Ensure 6 ft. distance between personnel,
unless safety or core function of the
work activity requires a shorter
distance.
• Any time personnel are less than 6 ft.
apart from one another, personnel must
wear acceptable face coverings.
• Post social distancing markers using
tape or signs that denote 6 ft. of spacing
in commonly used and other applicable
areas on the site (e.g. clock in/out
stations, health screening stations)

Required Postings
• FFCRA Leave Poster
• Social Distancing Signage
Post signage throughout the site to remind
personnel to adhere to:
 proper hygiene,
 social distancing rules,
 appropriate use of PPE, and
 cleaning and disinfecting protocols.

Rules for Tight Spaces
Tightly confined spaces
will be occupied by only
one individual at a time,
unless all occupants are
wearing face coverings.

Instill Cleaning Protocols
• Limit the sharing of objects
• Discourage touching of shared
surfaces or
• When in contact with shared objects or
frequently touched areas, wear gloves
• Sanitize or wash hands before and
after contact.
• Conduct regular cleaning and
disinfection at least after every shift,
daily, or more frequently as needed,
• Frequent cleaning and disinfection of
shared objects and surfaces, high
transit areas, restrooms and common
areas must be completed

Create a Cleaning
Policy
The Cleaning Policy
identifies what areas need
cleaning, how frequently,
who will be performing the
cleaning, and with what
products.

Keep Cleaning Logs
 Maintain cleaning logs on
site that document date, time,
and scope of cleaning.
 Cleaning must be performed
pursuant to DOH and CDC
Guidelines.

Hand Hygiene
Provide and maintain hand
hygiene stations for
personnel, including
handwashing with soap,
water, and paper towels, or
 Alcohol-based hand
sanitizer containing 60%
or more alcohol for areas
where handwashing is not
feasible.

Communication Plan
Establish a communication plan for
employees, visitors, and customers
with a consistent means to provide
updated information.
• Update Contact Info
• Designate Person in Charge
• Who will contact health dept?

Contact Log
• Maintain a continuous log of every
person, including workers and
visitors, who may have close contact
with other individuals at the work site
or area
• Excluding deliveries that are
performed with appropriate PPE or
through contactless means;
• Customers, should be encouraged to
provide contact information to be
logged but are not mandated to do
so.

Health Questionnaire
Employers are REQUIRED to collect answers to a Health
Questionnaire regarding exposure to COVID 19 and
COVID19 symptoms DAILY from Employees and keep a
LOG of collecting Such.
Questionnaire should Include:
(1) COVID-19 symptoms in past 14 days?
(2) Positive COVID-19 test in past 14 days?
and/or
(3) Close contact with confirmed or suspected COVID-19
case in past 14 days?

What Are the COVID-19 Symptoms?
You Might Be Surprised that the List of Symptoms Keeps Growing.
Currently CDC provides the following:
• Fever or chills
• Cough
• Shortness of breath or difficulty breathing
• Fatigue
• Muscle or body aches
• Headache
• New loss of taste or smell
• Sore throat
• Congestion or runny nose
• Nausea or vomiting
• Diarrhea
• https://www.cdc.gov/coronavirus/2019-ncov/symptoms-
testing/symptoms.html

Records: Daily Health
Questionnaire
• Provide to Manager/HR
• Limit Access to Who Can View
• Store in Employee Health Folder,
Separate from Employee’s other
Employment Record
• HIPPA protected Health Information
• Do not disclose
• If Answers are not “No” – Stay Home

Health Questionnaire
Log
• Record whether employees turned in
Questionnaire each day (Y or N)
• Log does not have the Answers of the
Questionnaire

Can You Require
Employees To
Have Their
Temperature
Taken?

YES!
• Employers can legally require non-
invasive temperature checks of
Employees. –CDC
• Temperature Checks are not Required
• Fever: Measured temperature of at
least 100.4 °F [38 °C] – per CDC

Should You Require
Employees To Have
Their Temperature
Taken?

Should You?
It is your
decision!
• OSHA & NYC require that you
provide a safe workplace for others
• Instituting non-invasive
temperature checks is one way to
show a reasonable effort to prevent
exposure of others.

Temperature Check
Considerations:
Where?
• At the Door
• At Home

At the Door
• Temperature Checks should be performed by someone with a
medical background or trained on the equipment.
• Screener Must Be Protected with PPE
• Non-Discriminate: Screen everyone.
• Private: Do Not Screen In Front of Others
• Avoid Lines for Screening, Social Distance
• Fever: At least 100.4 °F [38 °C] – per CDC
• Records?
• Pro: Shows evidence of precautions
• Con: HIPPA protected Information
• Keep Records By Employee, Do Not Mix in a Log

At Home
• Self reporting – Employees take temperature
daily before coming in
• Can report on Health Questionnaire
• If have a fever, Stay Home
• Issue: Will Employees be truthful?

Should Employer’s Record
Temperature Readings?
Pros – Written Record to
Prove Safety Measures
Cons – HIPPA information
You must protect the
information securely and
separately by Employee, Do
Not Mix Employee Health
Records

What to do if an Employee has a Fever?
• Fever: Measured temperature of
at least 100.4 °F [38 °C] – per
CDC
• Send them home
• Cannot return to work until has
not had a fever for over 72 hours
– per CDC

What Do I Do If An Employee
Tests Positive for COVID-19?
• Send them home.
• Immediately notify state and local health
departments
• Cooperate with contact tracing efforts
• Notify potential contacts, such as workers or
visitors who had close contact with the
individual, but do not name the employee.
Employers may not confirm the health status
of employees or communicate about
employees’ health.

What Should
the Employer
Say?
• Ex:
[Employer] has learned that an employee at
[location] tested positive for the Coronavirus as
of [date of results]. Through your employment,
you have potentially been exposed to COVID-
19 and you should contact your local health
department for guidance on further actions to
take to ensure your health.”

When Can
Employee
Return to
Work After
COVID-19?
Having It
• 10 days has passed
since first came on
• No Symptoms for 72
hours
Quarantine
• 14 days has passed
• No symptoms of
COVID 19 in past 72
hours

What
Happens
When
Employee Is
Sent Home
From Work
Work From Home:
OK to work from home if
viable, and feeling well
enough
If Cannot Work or
Telework:
• FFCRA Leave First
• Use other leave up
second
• NY Paid Family
Leave/Disability third

Employee Disclosure
and Release
• Supplements Employee Handbook
• Disclose New Rules
• Signature of Employees Shows
Acceptance
• Creates Ability to Discipline if Rules
are Not Followed
• Serves as Providing Notice
• Attempts to Protect from Lawsuits

Attorney Advertising
Ready for
Individualized
Advising?
Donaldson Legal Counseling PLLC
Tiffany A. Donaldson, Esq., Principal
counsel@dlcesq.com
(301) 332-2354
438 41st Street, No. 3, Brooklyn, NY 11232
Schedule A Discounted Rate
One-Hour Legal
Strategy Session
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(Regular Rate applies to any work over the one-hour introductory rate.)
Call: (301) 332-2354
Email: counsel@dlcesq.com
www.attorneylawny.com

Re-Opening NY Phase 1 & Phase 2 Requirements

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