Seyfarth Synopsis: As part of Governor Cuomo’s New York Forward plan, New York State has issued guidance for “Phase Three” industries,” which include personal care services and indoor dining. The guidance gives these businesses the ability to prepare and plan for reopening.
New York Forward
As discussed previously, Governor Cuomo’s reopening plan – titled “New York Forward” – is set to replace gradually the state’s stay-at-home directive known as “New York Pause.” While essential businesses and business activities may remain open subject to the essential business guidelines, non-essential businesses may only reopen subject to phases.
Today, New York Forward published guidelines for Personal Care and Indoor Dining. While there are not yet any Regions of New York in Phase 3, the guidance will be critical for those planning their re-openings, which could occur in the next two weeks.
New York State has clarified that the business reopening guidance applies to non-essential businesses in regions that will be permitted to reopen, essential businesses throughout the state that had remained open, and commercial and recreational activities that have been permitted to operate statewide with restrictions.
Before reopening, every business must meet specific mandatory requirements. The state has published “summary guidelines” (which list both the mandatory requirements and the recommended guidance) and detailed “final interim guidance” for each business category listed in Phase One, Two, and Three. (The guidance is not identical for each category, and a business should ensure it is following the applicable guidance based on its respective industry).
Businesses are also required to submit an affirmation to the state confirming that they have read and agree to operate in compliance with the detailed guidance. A link to the affirmation form is located at the end of the detailed guidance and can also be found here.
Finally, to reopen, every business is required to have a written “safety business plan” outlining how it will prevent the spread of COVID-19 in the workplace. Businesses may use the template (found here) to fulfill the requirement, or may develop their own tailored plan. The plan does not need to be submitted to a state agency for pre-approval, but must be retained on the premises of the business, posted conspicuously, and made available to the New York State Department of Health or local health and safety authorities upon request.
The last two regions to begin opening, New York City and Long Island, are now in Phase One of reopening (with Long Island entering Phase Two on June 10, 2020). Phase One industries include:
Agriculture, Forestry, Fishing and Hunting
Retail (Limited to curbside or in-store pickup or drop off)
For more details, please refer to our prior alert on Phase One Industries.
The rest of the regions are now in Phase Two of reopening. Phase Two industries include:
Professional services and offices
Real Estate (to the extent not already permitted)
Vehicle Sales, rental and leasing
Hair Salons and barbershops
For more details, please refer to our prior alert on Phase Two Industries.
No regions are currently in Phase Three reopening. Phase Three industries include:
Food Services – includes indoor drinking and dining (with appropriate social distancing).
Personal Care – includes non-hair-related personal care businesses and services, including tattoo and piercing facilities, appearance enhancement practitioners, massage therapy, spas, cosmetology, nail specialty, UV and non-UV tanning, or waxing.
The summary guidelines and final interim guidance can be found here:
Businesses should be aware that the State has created avenues for individuals (including customers) to file complaints against a business for failing to comply with the guidance. Individuals may register complaints through a 24/7 hotline as well as online. Employees may also register complaints based on working conditions with the New York Department of Labor. Failure to comply with the State’s guidance can expose businesses to fines, investigations and potential civil liability. Thus, employers should be sure they are in compliance with the guidance.
As regions enter Phase Three, employers should begin to prepare their reopening plans and stay up to date with any changes. Seyfarth lawyers are available to assist employers with ensuring compliance and developing return to work plans that will support a safe and successful return to the workplace.
 However, the following Phase Two industries must remain closed: (1) malls (but stores may reopen if they have an external entrance separate from the general mall entrance); (2) dine-in and on-premise restaurant or bar service; (3) large gathering/event venues; (4) gyms, fitness centers, and exercise classes; (5) video lottery and casino gaming facilities; (6) movie-theaters; and (7) places of public amusement.
 If guidance has not yet been published for a particular specific industry that is permitted to reopen, the business should refer to the NY Forward Safety Plan template.
 Take-out and delivery is permitted as part of Phase One. Outdoor dining is permitted as part of Phase Two.
 Hair salons and barbershops are addressed in Phase Two guidance.