COVID-19 Update
May 29, 2020

New Executive Orders 
Yesterday, Governor Cuomo signed Executive Order (EO) 202.34This Executive Order allows business operators and building owners to deny admittance to those who fail to wear a mask of face-covering.

The EO continues the provisions of the previous orders closing or restricting public or private businesses, as well as the EOs that required postponement, cancellation, or restriction on the size of all non-essential gatherings of ten or more individuals, through June 27, 2020. The regions that have met the conditions for Phase One reopening, as listed in the EO, are exempted from these provisions.

A second EO (202.35) issued today provides a similar exemption for Phase Two industries in five regions cleared for Phase Two reopening effective 1 p.m. today. 

Phase Two Reopening  
Today Governor Cuomo announced that five regions (Central New York, Mohawk Valley, North Country, Southern Tier and Finger Lakes) have met the requirements to enter into Phase two reopening effective immediately. Phase Two includes office-based businesses, in-store shopping at retailers, and limited service at barbers and hair salons. Total number of occupants at any given time are not to exceed more than 50% of the maximum occupancy. Guidance for all applicable industries can be found  here, and office-specific guidance can be found  here

Public Comment Period for 1915(c) Waiver Amendment
OPWDD Announced the Public Comment Period for the 1915(c) Comprehensive Home and Community Based Services (HCBS) Waiver Amendment will open Monday, June 1 and run through July 1, 2020. We are currently seeking clarification about the proposed amendment,  which includes rate-setting provisions outlined in the approved 2020-2021 New York State Budget and additional operational changes. OPWDD will be offering  two WebEx sessions on June 4 to provide an overview and outline the proposed changes. The WebEx sessions are open to the public and all interested parties are welcome to participate. More details about the amendment and WebEx registration information can be found here

CDC Care for Cloth Face Coverings 
The Centers for Disease Control and Prevention (CDC) published updated guidance on caring for cloth face coverings. The update details how to clean cloth face coverings by hand or machine and how to properly dry them. This information should be shared with all employees.

Death Investigations
We have been seeking relief from The Office for People With Developmental Disabilities (OPWDD) on investigations of COVID-19 deaths. During discussions with OPWDD leadership on this topic, they have shared that they cannot revise the requirements for investigating deaths at this time. To date, the majority of COVID-19 deaths have occurred in The Arc New York metro region. OPWDD has offered partnership with their Office of Internal Investigative Affairs (OIIA) to those Chapters who have large volumes of COVID-19 positive cases and are managing multiple death investigations. For Chapters in the metro region, OPWDD is willing to assist with collecting hospital records, conducting necessary interviews, etc. Chapters should document within their investigative report their inability to collect the records. OIIA would primarily take the older death investigations to help get them closed.

IRS Guidance Provides Relief for Section 125 and Flexible Spending Accounts
In a continued effort to provide certain relief to plan participants in the wake of COVID-19, the IRS has released two new sets of guidance which increase the flexibility of administering Section 125 cafeteria plans. Qualifying events for adding, dropping and changing coverage, extended claims periods and rollover amounts on Flexible Spending accounts can be modified under Notice 2020-29 and Notice 2020-33 at the employer's discretion. Full details can be found here.

Revised OSHA Recordkeeping Guidance for COVID-19
As New York's businesses begin to reopen, OSHA has issued revised guidance for recording cases of COVID-19. While the update recognizes it is difficult to definitively trace the exposure back to a work site, it requires that employers make reasonable efforts to determine if a case is work-related. Previous guidance included exceptions for non-healthcare employers. However, the updated guidance applies to employers in all industry sectors who are required to maintain a 300 log. 
Employers should discuss with the employee how they believe they contracted the illness, discuss work and out-of-work activities that may have led to contracting the illness, and review the employee's work environment for potential exposure. The guidance provides examples of evidence that weighs in favor of work-related and non-work-related exposure to aid in the employers effort to determine work-relatedness. 
If a reasonable and good faith inquiry has been performed and it cannot be determined it is more likely than not that exposure occurred in the workplace, the employer does not have to record that COVID-19 illness. 
This and all related updates will be cataloged on  The Arc New York COVID-19 Resource Page   for future reference. Please contact us if you have questions regarding any of this information.

Josh Christiana , Associate Executive Director for Quality, Compliance & Chapter Relations

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