Adding to an ever-expanding library of guidance for businesses amid the coronavirus pandemic, the Centers for Disease Control (CDC) has now published reopening guidance applicable to all employers with respect to employees at higher risk from COVID-19. The guidance also outlines practices specific to a few selected industries, including child care programs, schools and day camps, restaurants and bars, and mass transit operators.

For employers in New York State, the CDC guidance should be reviewed hand-in-hand with reopening guidance issued by New York Forward. As discussed in our previous legal alert, the New York Forward guidance currently applies to all industries in “Phase One” of New York’s reopening plan, as well as all Essential Businesses that have continued to operate.

“High-risk” workers, per the CDC guidance, include individuals over 65 years old and those with underlying medical conditions. As a non-exhaustive list, “underlying medical conditions” include lung disease, asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease requiring dialysis. Such workers are “encouraged to self-identify,” while employers are cautioned to refrain from improper medical inquiries that could violate federal law, including the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA). Employers in New York should also ensure their practices are consistent with the N.Y. Human Rights Law (HRL), the state law analogue to the ADA and ADEA which often imposes stricter requirements than its federal counterparts.

The CDC guidance identifies several practices for entities with high-risk workers. In general, the practices are similar to key social distancing and sanitizing practices that many businesses have already started.  Among the key actions, the CDC advises businesses to:

  • Enforce hand washing
  • Ensure adequate supplies are available to support sanitizing (such as having sufficient soap, hand sanitizer of at least 60 percent alcohol, no-touch trash cans)
  • Checking ventilation systems
  • Ensuring water systems are safe to use after a prolonged facility shutdown to minimize the risk of water-borne diseases (such as Legionnaires’).
  • Closing communal spaces, such as break rooms
  • Replacing in-person meetings with video or teleconferences.
  • Informing those who have had “close contact” with a person diagnosed with COVID-19 to stay home and self-monitor for symptoms, while maintaining confidentiality consistent with the ADA and New York State law.
  • Designating a company representative who will be responsible for responding to employees’ COVID-19-related concerns

Employers in New York State in industries that have not yet reopened should look to the CDC guidance as a starting point for what measures may be required once their industry reaches its respective reopening phase. Essential Businesses and those in phase one should review the CDC guidance as well as the New York Forward guidance to ensure their practices satisfy social distancing and sanitizing requirements.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Visit our COVID-19 response page for additional resources related to the pandemic.

Harris Beach has offices throughout New York State, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as New Haven, Connecticut and Newark, New Jersey.