Updated Guidance on New York State Executive Orders Mandating In-Person Workforce Reductions
On March 19, 2020, New York State Governor Andrew Cuomo issued Executive Order (EO) 202.7, modifying EO 202.6, to require that most employers in New York State “reduce the in-person workforce at any work locations by 75% no later than March 21 at 8:00 p.m.” Businesses and entities considered essential are exempt from the in-person restrictions.
Today, Governor Cuomo announced that he will be issuing a further mandate requiring non-essential businesses and entities to reduce their in-person workforce by 100% as of Sunday evening, March 22, 2020. Non-essential businesses and entities will be required to close as of that time.
As directed by Governor Cuomo, the Empire State Development Corporation (ESDC) has issued guidance intended to assist businesses in determining whether they qualify as an “Essential Business” under the EOs. The guidance provides that, for the purposes of Executive Order 202.6, “Essential Business” means:
- Essential health care operations, including:
- Research and laboratory services;
- Walk-in-care facilities;
- Veterinary and animal health services;
- Elder care;
- Medical wholesale and distribution;
- Home health care workers or aides;
- Doctor and dentist offices;
- Nursing homes, or residential health care facilities or congregate care facilities; and
- Medical supplies and equipment providers.
- Essential infrastructure, including:
- Utilities, including power generation, fuel supply and transmission;
- Public water and wastewater;
- Telecommunications and data centers;
- Airports/airlines; and
- Transportation infrastructure such as bus, rail or for-hire vehicles, and garages.
- Essential manufacturing, including:
- Food processing, including all foods and beverages;
- Medical equipment/instruments;
- Safety and sanitary products;
- Agriculture/farms; and
- Paper products.
- Essential retail, including:
- Grocery stores, including all food and beverage stores;
- Convenience stores;
- Farmer’s markets;
- Gas stations;
- Restaurants/bars (but only for take-out/delivery); and
- Hardware and building material stores.
- Essential services, including:
- Trash and recycling collection, processing and disposal;
- Mail and shipping services;
- Laundromats/dry cleaning;
- Building cleaning and maintenance;
- Child care services;
- Auto repair;
- Warehouse/distribution and fulfillment;
- Funeral homes, crematoriums and cemeteries;
- Storage for essential businesses; and
- Animal shelters or animal care or management.
- News media
- Financial institutions, including:
- Payroll; and
- Providers of basic necessities to economically disadvantaged populations, including:
- Homeless shelters and congregate care facilities;
- Food banks; and
- Human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters; and other critical human services agencies providing direct care or support.
- Construction, including:
- Skilled trades such as electricians and plumbers; and
- Other related construction firms and professionals for essential infrastructure, or for emergency repair and safety purposes.
- Defense, including:
- Defense and national security-related operations supporting the U.S. Government or a contractor to the U.S. government.
- Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, including:
- Law enforcement;
- Fire prevention and response;
- Building code enforcement;
- Emergency management and response;
- Building cleaners or janitors;
- General maintenance – whether employed by the entity directly or a vendor;
- Automotive repair;
- Disinfection; and
- Vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government:
- Technology support;
- Child care programs and services;
- Government-owned or leased buildings; and
- Essential government services1.
Under Paragraph 11 of the guidance, businesses and entities that are not listed as being essential, but which provide goods and services to businesses and entities that are listed as essential, may themselves be considered essential businesses and entities. Such businesses and entities would therefore be exempt from the in-person restrictions.
Employers not expressly listed in the EOs as essential businesses or entities can request a determination from ESDC about whether they qualify as exempt from the in-person reduction requirements.
Phillips Lytle stands ready to assist employers in analyzing the application of the EOs to their businesses, as well as navigating the process that ESDC has established through which businesses may request designation as an “Essential Business.”
We are also prepared to provide up-to-the-minute advice regarding the diverse and shifting legal issues impacting your business, including those related to Business Contracts & Obligations, Labor & Employment, Insurance, Restructuring & Finance, Environmental, Data Security & Privacy, and Real Estate.
For further assistance, please contact a member of the Labor & Employment Practice Team, the Phillips Lytle attorney with whom you have a relationship, or any other Phillips Lytle attorney who can assist you during these times of uncertainty.