Grasso, Bucki, Comment on Essential Business Directive

With essential business directive, New York sails ‘uncharted waters,’ lawyer says

ALBANY — We all would like to think that the work we do is essential to keeping society running.

But recently, many New Yorkers have found out that the job they do is not essential — at least, not in the middle of a pandemic.

In an effort to combat the rapid spread of the coronavirus, Gov. Andrew Cuomo last week ordered all workers in non-essential businesses to stay home effective Sunday night. As of Monday morning, nearly 21,000 New Yorkers have been diagnosed with COVID-19, the illness caused by the virus; 157 have died.

New York’s directive joined similar orders from Connecticut, New Jersey, California and Pennsylvania, meaning a sizable proportion of the U.S. population — more than one out of five people — have been told to work from home unless they are exempted.

“This is just the greatest social disruption we’ve ever faced in any of our lives,” said Jim Grasso, a labor attorney with Phillips Lytle LLP. “We’re in uncharted waters, and it’s unclear how we’re going to come out of it at the other end.”

A list of exempted businesses posted by Empire State Development includes dozens of fields, from the obvious choices like hospitals, grocery stores and banks to funeral homes, laundromats and storage facilities.

Ride share and delivery drivers, janitors, skilled trades like electricians and plumbers, animal shelters and gas stations are also considered essential.

Some Capital Region companies excluded from the order include GlobalFoundries, the Malta semiconductor manufacturer; Mowhawk Fine Papers in Cohoes, which makes paper and envelopes for customers like the Mayo Clinic and Cleveland Clinic; and Extreme Molding in Watervliet, whose products include a medi-pacifier used for giving medicine to infants.

The exemption also includes any business that’s considered crucial to the supply chain of a listed essential business. That expands the number of people who are potentially allowed to continue going to work, but also creates ambiguities that are “ripe for abuse” if companies try to self-determine whether or not they are essential, said Craig Bucki, a Phillips Lytle attorney whose focuses include litigation involving state and municipal government.

“I suppose you can go on down the line and somehow say, ‘I supply somebody who supplies somebody else who could be essential,'” Bucki said. “If you have any ambiguity as to whether you should be considered essential or not, it’s better to get that approval from the state, and to get that endorsement than to make that self determination and turn out to be wrong.”

Owners who think their businesses should be considered essential can request a designation from Empire State Development. Even if a business is considered essential, only workers whose presence is crucial to the function of the business should go to work.

During a press conference last week announcing the executive order, Cuomo stressed that the directive is legally binding.

“These provisions will be enforced. These are not helpful hints,” Cuomo said. “These are legal provisions. There will be a civil fine and mandatory closure for any business that is not in compliance. Your actions can affect my health — that’s where we are.”

In the meantime, employers in New York now have grapple with not being able to keep up with out-of-state competitors who can continue with business as usual.

“People will need to survive and move on to do whatever they need to do to make a living,” Grasso said. “I’m not sure how this is going to shake out, but I’ll be surprised if things are back to what they were two weeks ago anytime soon.”