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The Road to Re-Opening

When Governor Cuomo instituted the “New York State on PAUSE” Executive Order in March, the hope – reflected in the name itself – was that the measures implemented would be temporary. Once the lockdown flattened the curve of new infections, the economy could re-open and things would start to go back to how they were. However, it is increasingly apparent that especially in New York City, the “new normal” is going to resemble the current restricted economy much more than life before the pandemic arrived.

Although the PAUSE Order was originally scheduled to expire in April and was then extended until May 15, on Thursday evening Governor Cuomo extended the closure of most businesses in New York City and the suburbs again, through at least May 28. The underlying state of emergency has been extended until June 13. Most significantly, earlier this month the Governor issued a Statewide “Re-Opening Plan” that sets forth seven different metrics that must be met before a region can begin loosening the current lockdown restrictions.

Currently, New York City has attained only four of the seven metrics, as can be seen at the State’s online dashboard: New York City will need to significantly reduce the rate of new hospitalizations (from 2.37 to fewer than 2 new hospitalizations per 100,000 residents, measured on a three-day rolling average), increase its ICU capacity to 30% availability (from the current 23%), and also increase its overall hospital bed capacity to 30% availability (from the current 28%). Even under the current positive trajectory, it might be several more weeks before New York City hits these benchmarks. Similar challenges confront the Hudson Valley region (including the northern suburbs) and Long Island.

This is only the start of the process. Once a region achieves the required benchmarks, businesses and industries will be permitted to re-open in a four-phase approach, based on how “essential” those businesses are to the public. Categories of business include construction and manufacturing (in phase one), professional services, real estate, and retail (in phase two), restaurants and food services (in phase three), and education, arts, and entertainment (in phase four). Each of those re-opening phases is to be stretched over a period of weeks. If at any point the region drops below the metric benchmarks, the whole process has to re-start from the beginning.

Even if New York City (or any other region) is able to fully “re-open,” it will be much changed from before the pandemic. Among other things, the Re-Opening Plan requires significant new health and safety infrastructure to be developed, including adjusting work hours and shift design as necessary to reduce density in the workplace, enforcing social distancing protocols, restricting business travel for employees, requiring all employees and customers to wear face masks if in frequent contact with others, enacting a continuous health screening process for workers, and developing a comprehensive tracing and tracking system for new COVID-19 cases.

Given all the uncertainty about the medical issues surrounding the virus and the government’s administrative capabilities in response, our clients should prepare themselves for a long road to re-opening and for many challenges – including weighing health risks against business necessities and dealing with the increasing possibility of people refusing to comply with the public-health guidance – along the way.