Phase Four Business Reopening Guidance: Just the Highlights

For many upstate regions, “Phase Four” of New York’s business reopening plan started on June 26th. As of June 30, 2020, seven regions are in Phase Four (Western New York, Finger Lakes, Central New York, Southern Tier, Mohawk Valley, and the North County), three are in Phase Three (the Capital Region, Mid-Hudson and Long Island), and New York City is in Phase Two. 

Phase Four includes Higher Education, “Low-Risk” Outdoor Arts & Entertainment, “Low-Risk” Indoor Arts & Entertainment, and Media Production. Notably, Phase Four, despite being the last pre-planned reopening phase, does not address businesses that perform non-Low-Risk outdoor or indoor programming, such as theatres, amusement parks, bowling centers, gyms, fitness centers or exercise classes. 

To mitigate confusion about which businesses constitute Phase Three businesses, Empire State Development has created a Business Reopen Lookup Tool. Business owners and consumers may enter the county and industry in which a business operates to determine, in real time, whether that business is Phase Four approved.  

As with Phases One, Two and Three, individuals are able to file complaints regarding the improper operation of businesses 24 hours a day, 7 days a week, online or by phone, and employees may make complaints against their employers through an online form with the Department of Labor. Therefore, it is imperative that all employers and public-facing businesses comply in good faith with all guidance to avoid possible penalties, or business closures. 

Though guidance varies by industry, the common thread across each is that social distancing remains imperative.

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Here are the highlights important to you:
  • Safety plans must be completed, and maintained onsite (it is not a requirement that they be submitted to the Department of Health). A link to the safety plan template is provided here: Safety Plan Template.
  • Businesses must read and affirm that they have read the detailed guidance. A hyperlink for the affirmation is located at the bottom of each industry’s “detailed guidance” (links below), and allows businesses to submit their business information to Empire State Development.
  • Guidance varies by sector, and subcategories within sectors, so it will be important to locate the guidance most applicable to your business.
  • The 6-Foot Rule continues to be in effect, and persons working or patronizing businesses in all industries should attempt to stay 6 feet apart when possible. If persons must be within 6 feet of one another, face coverings are required.
  • Screening must occur regularly to determine whether employees or vendors had COVID-19 symptoms, tested positive for, or came in contact with someone suspected or known to have COVID-19 within the past 14 days.
  • Businesses must designate a point-of-contact whom employees can inform if they are experiencing COVID-19 symptoms.
Industry-Specific Highlights
  • Higher Education (Click to Read and Affirm Detailed Guidance)
    • This guidance pertains to community and junior colleges, universities, graduate and professional schools, medical and technical schools.
    • People who do not live together (roommates) may not come within 6 feet of one another without wearing acceptable face coverings.
    • Employees, students and visitors must be advised that they are required to use facemasks when in common areas and in situations where it may be difficult to social distance (e.g., elevators).
    • Restrooms and other heavily trafficked areas and high-touch surfaces should be regularly cleaned and disinfected.
    • If someone is diagnosed positive with COVID-19, cleaning and disinfection should immediately be provided for exposed surfaces in that area.
    • Regular screening shall be provided for students, but students are not required to be screened on a daily basis.
    • Students who test positive for COVID-19 or are exhibiting COVID-19 symptoms should be immediately sent home, to their residence, or to the designated quarantine or isolation location with arrangements for health assessments and testing.
    • Facilities must immediately report positive cases to state and local health officials.

  • Low-Risk Outdoor Arts & Entertainment (Click to Read and Affirm Detailed Guidance)
    • This guidance pertains to outdoor zoos, botanical gardens, nature parks, grounds of historical sites, outdoor museums, outdoor agritourism, and the like.
    • Limit workforce and patron/visitor presence to no more than 33% of the maximum occupancy for a particular area at a given time.
    • Ensure limited indoor capacity that can accommodate persons who may need to enter to access restrooms, the outdoor entertainment space or payment locations.
    • For exhibits in small areas, calculate and enforce maximum occupancy limits in line with social distancing.
    • Control flow of traffic into sites and exhibits to adhere to capacity requirements.
    • Only permit group tours for members of the same household or party.
    • High-risk exhibits (including those inviting patrons/visitors to touch or wear objects) must be closed.
    • Children’s play areas must be closed, unless such areas can be cleaned, disinfected, and sanitized between each child using the equipment who is not a member of the same household or party.
    • Any picnic or community seating areas should be moved so they are more than 6 feet apart.
    • Hand sanitizer must be made available throughout common areas.
    • Headset/equipment rentals must be discontinued unless they can be disinfected between each use.
    • If single-use items (i.e., maps) are NOT provided, ensure they are cleaned and disinfected between each use.

  • Low-Risk Indoor Arts & Entertainment (Click to Read and Affirm Detailed Guidance)
    • This guidance pertains to indoor museums, historical sites, aquariums, and the like.
    • Patron/visitor occupancy should be limited to no more than 25%.
    • Patrons/visitors must only be granted entrance if they wear an acceptable face covering.
    • Employees must wear face masks any time they are within 6 feet of others.
    • Tours are only permitted for groups consisting of members of the same household or party.
    • High-risk exhibits (including those inviting patrons/visitors to touch or wear objects) must be closed.
    • Children’s play areas must be closed, unless such areas can be cleaned, disinfected, and sanitized between each child using the equipment who is not a member of the same household or party.
    • Any picnic or community seating areas should be moved so they are more than 6 feet apart.
    • Hand sanitizer must be made available throughout common areas.
    • Headset/equipment rentals must be discontinued unless they can be disinfected between each use.
    • If single-use items (i.e., maps) are NOT provided, ensure they are cleaned and disinfected between each use.

  • Media Production (Click to Read and Affirm Detailed Guidance)
    • This guidance pertains to all activities undertaken in motion picture, music, television, and streaming productions on set, on location, or at any production recording site.
    • All indoor facilities must be limited to 50% of their maximum occupancy for a particular area.
    • Persons may not come within 6 feet of one another without wearing acceptable face coverings, and for those functions in which persons must come within 6 feet of one another, protocols should be established to promote safety.
    • All non-essential persons (e.g., family, friends, guests, visitors) must be prohibited from both indoor and outdoor production facilities.
    • Social distancing requirements must be taken into account when scouting production locations to ensure they are large enough to maintain social distancing, and secure enough to be closed completely to the general public.
    • If more than one individual rides in a vehicle, ensure all occupants wear face coverings.
    • Prohibit live audiences, unless they consist only of employees, cast and crew, provided that no audience of more than 100 individuals, or 25% of the audience capacity, whichever is lower, may congregate. At all times, social distancing of 6 feet must be maintained.
    • All props, costumes and set materials must be cleaned and disinfected between each use, and stored in sealed containers between uses.
    • Daily health screenings must be implemented for employees, cast, crew, contractors, and vendors.

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If you are a Phase Four Business Owner, it is imperative that you review the full guidance provided in the links above. If you have questions about how to bring your business into compliance with New York’s new guidance, our Labor & Employment Law team is ready to help.