On March 20, Governor Cuomo issued Executive Order 202.6 which directed all non-essential businesses to close.  On April 26, 2020, the Governor announced a “phased” approach to re-open businesses which was based on public health factors (e.g., new Covid-19 infections, heath care system capacities, diagnostic testing capacities and contact tracing capacities). Just recently, New York State’s Department of Health issued its Interim Guidance for Curbside and In-Store Pickup Retail Business Activities During the Covid-19 Public Health Emergency.  No business can open its doors for curbside and/or in-store pickup activities (the “Activities”) without meeting the minimum standards outlined by the State.  The following summarizes the more pertinent guidelines:

I. PEOPLE

• workforce presence is limited to only employees necessary to conduct the Activities
• a distance of at least 6 feet must be maintained by employees; any time employees must come within 6 feet of another person, face coverings must be worn; if distancing is not feasible, physical barriers may be erected in lieu of face coverings
•  in-person gatherings must be limited to the greatest extent possible
• non-essential visitors should be prohibited
•  employees must sanitize their hands before and after making an exchange with a customer

II. PLACES

• signs must be posted outside the retail location reminding individuals to adhere to social distancing instructions
•  measures to reduce bi-directional foot traffic must be put in place (e.g., tape on floors, signs with arrows)
• designated areas for pick-up and deliveries must be established
• employers must provide face coverings/masks to their employees at no cost to the employee; employees may use their own face coverings
•  gloves must be worn if handling food products
• hand hygiene stations must be provided on site
•  retail locations must be cleaned regularly and high risk areas (e.g., frequently used areas and frequently touched surfaces) must be more frequently cleaned
•  shared food/beverage stations are prohibited (e.g., buffets and soda stations)

PROCESSES

• mandatory daily health screenings are required of employees and essential visitors; daily temperature checks may be required but is not mandatory
• locations cannot mandate that customers complete a health screen or provide contact information
• a site safety monitor must be designated to insure continuous compliance with the safety plan AND a contact must be identified as the party to whom employees with possible Covid-19 symptoms must report
•  local health departments and the Department of Health must be notified  once an employer is informed of any employee’s positive Covid-19 test result
• a safety plan must be conspicuously posted on site (it does not get filed with any agency); NYS has prepared the NY Forward Safety Plan Template which may be filled out by the business owner or he/she may develop their own safety plan

Finally, it should be noted that, pursuant to Executive Order 202.34, business operators and building owners, and those authorized on their behalf, have the discretion to ensure compliance with the directive set forth in Executive Order 202.17 (requiring any individual over age two, and able to medically tolerate a face-covering, to cover their nose and mouth with a mask or cloth face-covering when in a public place). This discretion specifically includes the right to deny admittance to individuals who fail to wear proper face-coverings as well as the right to require or compel the removal of any individual failing to wear a proper face-covering.  If an individual fails to adhere to such directive then the owner or operator will not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of such directive.

If you have any questions regarding the contents of this article or any other matter affecting your business, please reach out to either Dennis O’Rourke at (516) 880-7279 or dorourke@moritthock.com or to Brian Adelman at (516) 265-1184 or badelman@moritthock.com.