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June 24, 2020

Higher Education and COVID-19: New York State Issues Phase Four Guidance

New York State is moving forward with its reopening plans following the COVID-19 shutdown in late March. Governor Cuomo’s region-based, four-phase reopening plan charts a detailed and methodical approach to reopening non-essential business sectors, starting with industries that are considered lower risk for transmitting COVID-19.

While institutions of higher education were among the first to respond to the COVID-19 threat, under New York State’s reopening protocols, they will be among the last to resume in-person operations. Although no region has reached Phase Four of the state’s reopening plan yet, the state announced its protocols for reopening colleges and universities for fall semester 2020, giving institutions of higher education much-needed guidance and direction on a possible reopening in a few short months.

Within the past week, the state released three key documents for institutions of higher education. Of significant importance, the detailed “Interim Guidance for Higher Education” requires the affirmation of each institution of higher education—including, but not limited to, community and junior colleges, universities, graduate and professional schools, medical schools, and technical schools—and requires each of these institutions to develop and submit a reopening plan consistent with the state’s guidance. No higher education activities can resume without meeting the minimum state guidance as well as any applicable federal guidance.

Institutions of higher education are required to develop and implement protocols to ensure a safe return to campus for students, faculty, and staff. Colleges and universities will need to ensure sufficient PPE for employees and must develop plans for screening and diagnostic testing of students and faculty, with mandatory regular health screenings to be implemented daily for employees and periodically for students. Residential living plans, classroom operations, and disinfecting and cleaning protocols must be prepared. Monitoring plans, including testing protocol and tracing programs must be included, and containment protocol for positive or suspected COVID-19 cases must be developed.

Colleges and universities must also develop shutdown protocols in the event campuses are again faced with the need to send students home in the interest of public health or at the direction of government officials. In addition to submitting the institution’s reopening plan to the Department of Health using the link at the end of the “Interim Guidance” document, the institution must also make the reopening plan available to its employees and students.

The guidance also refers to a number of other “industry-specific” guidelines and recommends that colleges and universities refer to this guidance when developing proposed reopening plans. For example, on-campus food services must operate in accordance with the state’s “Interim Guidance for Food Services During the COVID-19 Public Health Emergency,” while administrative functions must follow the “Interim Guidance for Office-Based Work During the COVID-19 Public Health Emergency.” As colleges and universities often function as self-isolated communities within the larger community, these institutions should be flexible and creative in ensuring the various state guidance documents and policies are followed and incorporated into their reopening plans.

The state’s “Checklist for Higher Education Institution Reopening Plans” outlines the minimum requirements for reopening. Included with the mandatory requirements for reopening institutions of higher education, the state also developed proposed best practices for colleges and universities in its “Higher Education Guidelines” document, which should help each institution to consider and develop an appropriate and specific reopening plan tailored to the needs of the institution. It should be noted that distance learning may still be utilized even if students return to campus, and shared spaces may operate on an appointment-only or more regimented schedule to allow for appropriate cleaning and social-distancing protocols.

Even if colleges and universities can reopen for fall semester 2020, it is clear that, at least for institutions of higher education in New York State, that a return to campus will not be a return to life as usual for students and faculty. Some of the changes that were implemented to finish spring semester 2020 may be here to stay. However each institution chooses to move forward, it is clear that the safety of students, faculty, and staff must be given the highest regard.

If you have any questions regarding the content of this alert, please contact Buster Melvin, Higher Education Team leader, at emelvin@barclaydamon.com; Gabrielle Figueroa, associate, at gfigueroa@barclaydamon.com; or another member of the firm’s Higher Education Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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