With coronavirus transmission rates again rising rapidly, New York Governor Andrew Cuomo announced on November 30 the state’s “Winter Plan” to combat COVID-19. This plan builds on the “Micro-Cluster Strategy” set forth in Governor Cuomo’s Executive Order No. 202.68, which sought to avoid shutdowns of large portions of the state by replacing the state’s previous regional strategy¹ with one that identifies smaller COVID-19 problem areas and categorizes them into color-coded zones with corresponding levels of restrictions. 

Individuals and employers will need to quickly acquaint themselves with this new regime. This client alert describes the Micro-Cluster Strategy—as enhanced by the new Winter Plan—including the identification of focus zones and corresponding restrictions. It also discusses the current rules for out-of-state travel, which were also recently modified. 

A. Identification of Focus Zones

The state’s Micro-Cluster Strategy aims to identify and target specific geographic areas called “focus zones” or “cluster zones,” which are designated by the New York State Department of Health (DOH) based on the data and guidelines discussed below. Once such a zone is identified, the Micro-Cluster Strategy imposes restrictions on individuals and businesses within that zone that vary based on the severity of the outbreak and various healthcare capacity criteria. DOH also may designate “buffer zones” with fewer restrictions in the areas surrounding focus zones to help prevent further spread.  

Once zones have been designated, restrictions remain in place for at least 14 days. After 14 days, DOH reviews data to determine whether the zone has successfully reduced the spread of COVID-19 to a level where the applicable restrictions can be eased or eliminated.  
There is no precise formula for how the state determines what geographic area comprises a particular zone. Instead, DOH makes such determinations based on “a combination of numerical data figures and epidemiological judgment” informed by four key factors: 

1. Testing, in particular an area’s positivity rate and positive tests per capita; 
2. Hospitalizations, including hospital and ICU capacity, staffing ratios, and daily admissions; 
3. Geography and population density, which divvies up the state into “tiers,” with high-density areas (including New York City, Long Island and Westchester) placed in Tier 1 and the lowest-density areas in Tier 4; and 
4. Epidemiological considerations, including the age or demographic group testing positive, whether a discrete source of an outbreak can be established through contact tracing, and whether the outbreak affects a congregate facility.  

Based on these considerations, DOH designates “ZIP codes and other geopolitical or other common geographic subdivisions such as county, census tracts, or contiguous neighborhoods . . . where clusters may be occurring.” There are currently 26 focus zones subject to restrictions, including all of Staten Island and sections of each of the four other boroughs of New York City. DOH has published maps of the current zones on its website here.

B. Color-Coding of Focus Zones and Corresponding Restrictions 

Once a focus zone has been identified, it is categorized as one of three colors: Yellow Precautionary Zones, Orange Warning Zones or Red Micro-Cluster Zones. Each area’s population tier determines the criteria for moving from one color to the next. For example, the metrics for Tier 1 areas such as New York City are:² 

• Yellow Precautionary Zone: the area has a seven-day rolling average positivity rate above 2.5% for 10 days AND the area has 10 or more new daily cases per 100,000 residents on a seven-day average;
• Orange Warning Zone: the area has a seven-day rolling average positivity rate above 3% for 10 days AND the area has 10 or more new daily cases per 100,000 residents on a seven-day average; and
• Red Micro-Cluster Zone: the area has a seven-day rolling average positivity rate above 4% for 10 days AND the area has 10 or more new daily cases per 100,000 residents on a seven-day average.

The list of restrictions for each color affects categories of activities, including in-person business activities, mass gatherings, dining, schools and places of worship.³ For example, all businesses in a Yellow Precautionary Zone may remain open, subject to compliance with the various rules found in DOH’s “New York Forward” industry-specific guidance for reopening. However, in an Orange Warning Zone, “high-risk non-essential” businesses must close. Such businesses include “gyms, fitness centers and classes, hair salons, barber shops, and all other personal care services including but not limited to spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis.”⁴ In Red Micro-Cluster Zones, only essential businesses may remain open.

Empire State Development (ESD), the state’s economic development agency, published guidance identifying “essential businesses” for purposes of Executive Order No. 202.68. The new guidance closely tracks the ESD’s previous guidance issued pursuant to Executive Order No. 202.6—which first defined essential businesses back in March—but the new guidance contains some differences. For example, the “financial institutions” category from ESD’s previous guidance no longer appears. Instead, businesses deemed essential include “[c]ertain office-based work, including financial services and research,” a category which includes banks, lending institutions, insurance, and “services related to financial markets, except debt collection.” The new category now includes higher education research and expressly provides that “other office-based work not specified [in the guidance] may operate remotely.” 

In his Winter Plan, Governor Cuomo established another level in addition to the color-coded levels: the Emergency Stop Level. The state intends to determine the precise criteria for triggering the Emergency Stop Level, which is designed to preserve hospital capacity, in the coming days. Designation of an area as being at the Emergency Stop Level places it under the NY Pause guidelines, which the state used in March to broadly restrict on-site workplace operations. WilmerHale discussed NY Pause in a previous client alert.  

C. Enforcement

The state has said that zones of any color will be subject to increased enforcement and compliance, community testing, outreach from state officials, contact tracing support, and public education. Both state and local authorities can enforce these rules, and compliance efforts have predominantly focused on large gatherings and the businesses that host or promote them, as well as restaurants and bars that operate in violation of the various restrictions. Yet this dynamic is likely to shift if, for example, parts of New York City with significant office space are designated as focus zones.  

D. New York’s Testing Exception to the Out-of-State Traveler Quarantine

As discussed in a previous client alert, travelers to certain states with high transmission rates must quarantine upon arrival in New York. Travel guidelines currently require individuals to quarantine for 14 days if they arrive from any “non-contiguous” state (i.e., states that do not border New York⁵) or from a country for which the Centers for Disease Control and Prevention has issued a Level 2 or 3 Travel Health Notice. However, pursuant to Executive Order No. 205.2, dated October 31, 2020, DOH has also implemented new guidelines allowing travelers to New York to “test out” of the full 14-day quarantine. 

The new testing exemptions have two key provisions. First, people who travel to any other state for less than 24 hours do not need to quarantine upon arrival in New York. However, they must fill out a traveler form and take a COVID-19 test four days after arrival. Second, travelers who were in a non-contiguous state for more than 24 hours must (1) obtain a test within three days of departure and prior to arrival in New York; (2) upon arrival, quarantine for three days; and (3) on day four of the quarantine, obtain another COVID-19 test. If both COVID-19 tests are negative, the traveler may exit quarantine. Out-of-state travelers and New York residents returning to the state should keep test result documentation on their persons and available for inspection upon request.  

E. Conclusion

The complexity and evolving nature of New York’s response to COVID-19 make understanding restrictions and requirements challenging. WilmerHale will continue to track developments and is available to provide specific guidance on how to comply with this new regulatory landscape. We invite readers to reach out to the authors of this alert or their regular contacts at WilmerHale.