Kevin J. Mulvehill, Craig R. Bucki, What Is Essential

Sorting out what is ‘essential’

Companies may retool to stay afloat

Many law firms are being inundated by questions from firms striving to comply with New York Gov. Andrew Cuomo’s order to close all non-essential businesses in an effort to slow down the COVID-19 pandemic.

“We’ve been on the phone and responding to emails around the clock just trying to help our clients best navigate this situation in a manner that will allow them, to the extent they are closed, reopen their doors when this is all over and to continue to operate and effectively navigate this,” said Kevin J. Mulvehill, a partner at Phillips Lytle LLP, who works in the labor and employment law practice area.

“Unfortunately the reality for some companies that are experiencing financial hardship right now is which bill do we pay first,” Mulvehill said.

Some businesses are struggling to determine whether they fall into the essential or non-essential category.

“I would say that’s been the No. 1 question about the executive order that we’ve received from clients, where part of the business would fall under the essential category, and part of the business arguably wouldn’t,” said Craig Bucki, a partner at Phillips Lytle LLP who specializes in the government operations practice area.

“There’s a gray area as to the extent to which they should be considered essential and to continue having workforce on premises the way that they normally would,” he said.

More information was released after the initial order explaining that businesses with operations considered essential can operate with on-premises workers to the extent that they are necessary for the essential part of the business, Bucki said.

“This is not a prohibition on work by non-essential people. It’s just that the non-essential people, if they are going to work at all, need to work from home rather than coming into the business premises in order to limit the opportunities for the spread of coronavirus,” Bucki said.

Several companies have asked about retooling to make products that are considered essential during the emergency in order to stay in business.

“Any business that can take advantage of this opportunity to stay open while making essential products is well served to do that,” Bucki said.

In addition to rules about what businesses can operate under the order, the state expects the essential businesses to adhere to guidelines to limit the spread of the virus, such as maintaining social distancing of six feet between individuals and cleaning and disinfecting as often as possible.

The governor’s order has an end date of April 19, but it’s subject to change and could be extended.

Cuomo has said that the order could be enforced under a provision of the New York State Public Health Law which allows for administrative fines and allows the state Attorney General’s Office to bring litigation to compel non-essential businesses to shut down on-site operations.

The Attorney General’s Office has set up a hotline for employees and the general public to call to report a non-essential business that is continuing on-site operations. The number is (212) 416-8700, or you can send an email to: Labor.Bureau@ag.ny.gov.