Guidance on New York State Executive Orders 202.11 and 202.13

On March 27, 2020, New York State Governor Andrew Cuomo issued Executive Order (EO) 202.11, issuing directives and suspending certain statutes, local laws, ordinances, orders, rules and regulations from March 27, 2020 through April 26, 2020. On March 29, 2020, Governor Cuomo issued EO 202.13, issuing new directives and suspending other laws from March 29, 2020 through April 28, 2020.

EXECUTIVE ORDER 202.11

Delaying certain deadlines for businesses and other private actors.

  • The time to renew licenses for the following individuals and businesses is extended to May 26, 2020:1
    • Notary publics
    • Security or fire alarm system installers
    • Private investigators; bail enforcement agents; and watch, guard and patrol agencies
    • Security guards
    • Armored car carriers
    • Armored car guards
    • Cosmetologists
    • Barbers
    • Automobile brokers
    • Pet cemetery or crematorium operators
    • Hearing aid dispensers
    • Athlete agents
    • Document destruction contractors
    • Occupations licensed in connection with professional combative sports
    • Telemarketers
    • Members of the New York Black Car Operators’ Injury Compensation Fund, Inc.
    • Real estate appraisal management companies
    • Real estate brokers and real estate salesmen
    • Home inspectors
    • Apartment information vendors
    • Ticket resellers
  • Manufacturers, retailers, installers and mechanics can renew existing certifications even if they cannot meet their continuing education requirements due to course cancellations.2
  • The requirement that vehicles operated by carriers of passengers, property, and household goods be inspected within the last six months is tolled for vehicles voluntarily placed out of service due to COVID-19.3
  • Vehicles with expired certificates for the annual safety inspection and biennial emissions inspection may be lawfully operated so long as their inspection certificates were valid on March 27, 2020.4
  • The deadline to submit residency certificates to community colleges is suspended, and applications for these certificates can be sent by e-mail and post.5

Delaying certain deadlines and excusing public event requirements for government actors.

  • Public hearings are not required for proposed projects under the Urban Development Corporation Act, so long as the Urban Development Corporation provides an alternative opportunity for public comments and publishes notice.6
  • Non-public opening of bids for public contracts is allowed provided that the public entity records or livestreams the bid opening for public viewing.7
  • The Authorities Budget Office may disregard deadlines for certain reports required under Public Authorities Law when state or local authorities fail to meet their statutory requirements.8
  • The Attorney General is not required to respond to a co-op or condominium offering plan in 30 days, provided that the time frame for such response may be extended up to 30 days.9
  • The deadlines for the Adirondack Park Agency to respond to requests for variances or permit modifications, and otherwise process permit requests, are suspended.10
  • Individuals subject to disclosure requirements under Public Officers Law § 73-a who fail to complete the ethics trainings required by Section 94(10)(a-c) of the Executive Law within the statutory deadlines do notviolate the law if they complete the trainings within 30 days.11

Suspending or modifying certain medical licensing, certification and training requirements.

  • Graduates of nursing programs may practice nursing under the supervision of a registered nurse and with the endorsement of the employing hospital or nursing home for 180 days immediately following graduation.12
  • Midwives licensed and in good standing in other states or in Canadian provinces may practice in New York State.13
  • Certain services for persons with developmental disabilities are not limited to certified settings if the commissioner of the New York State Office for People with Developmental Disabilities (OPWDD) approves the settings used.14 EO 202.13 contains an identical provision, extending the effective date to April 28, 2020.
  • Direct support professionals employed in programs and facilities certified by the OPWDD in positive behavioral approaches that are experiencing staff shortages are permitted abbreviated training and extension of recertification deadlines.15

Provisions related to pharmacies.

  • Registered resident pharmacies and registered resident outsourcing facilities may compound hand sanitizer products consistent with FDA policy.16
  • Pharmacy technicians and pharmacists may practice at alternative locations, including homes, as long as there is adequate security to prevent Personal Health Information from being compromised.17
  • Pharmacists are prohibited from dispensing hydroxychloroquine or chloroquine except in certain circumstances.18

Provisions related to SUNY Hospitals.

  • Physicians assisting in the State’s COVID-19 response and working in SUNY facilities are eligible for defense and indemnification under Section 17 of the Public Officers Law for medical services provided as part of the response.19
  • Volunteers in SUNY’s state volunteer program for several SUNY hospitals are not employees for purposes of defense and indemnification.20

Provisions related to schools.

  • The Statewide closure of schools is extended until April 15, 2020.
  • School aid will not be cut despite schools failing to have 180 days in session.
  • School districts must continue plans for alternative instruction, distribution of food, and child care, with an emphasis on the children of essential workers.
  • School districts should continue to apply any remaining vacation or snow days.

Other provisions.

  • Electronic signatures are permitted to execute documents authorizing or accepting funeral services.21
  • Domestic violence shelters are not subject to certain statutes and regulations that limit the period and amount of reimbursement to an established per diem rate.22
  • Income earned during the period of the emergency will be disregarded from the earnings limitation for persons in positions of public service that are also receiving a retirement allowance from a State retirement system.23

Provisions related to State enforcement and guidance.

  • Violating an executive order limiting the operation of a facility or total occupancy of a space violates the law, including the Uniform Code or other local building code effective in that jurisdiction.
  • In the case of a violation, State, county and local police are authorized to remove people from the spaces and facilities; State, county and local code enforcement officials and fire marshals are authorized to issue an appearance ticket, a Notice of Violation, an Order to Remedy such violation, and/or a Do Not Occupy Order to any owner, operator or occupant of such facility or space; and governmental units and agencies may take other enforcement actions to the extent necessary.
  • Guidance from the New York State Department of Health (NYSDOH) related to COVID-19 is effective immediately and supersedes any prior conflicting guidance from the NYSDOH and any other political subdivision of the State related to the same subject.

EXECUTIVE ORDER 202.13

Provisions related to insurance.

  • The grace period for payment of premiums and fees under Sections 3203 and 4510 of the Insurance Law is extended to 90 days for life insurance policyholders and fraternal benefit society certificate holders facing financial hardship due to COVID-19.24
  • Life insurance policyholders, annuity contract holders, and certificate holders under a group policy or contract who are unable to exercise their rights or benefits in a timely manner as a result of COVID-19 have 90 days to exercise such rights or benefits.25
  • Insurers may not cancel, non-renew or conditionally renew any insurance policy issued to individuals or small businesses for a period of 60 days for any policyholder facing financial hardship as a result of COVID-19. For this EO, small businesses are independently owned and operated and employ no more than 100 individuals. This provision also applies to insuring certificate holders in group insurance policies that are individuals or small businesses.26
  • The Superintendent of Financial Services is authorized to promulgate an emergency regulation to apply the provisions of EO 202.13 regarding policy cancellations to premium finance agencies, subject to the safety and soundness considerations of the premium finance agencies.27
  • Instruments required to be signed, verified or acknowledged, and delivered to the superintendent under the Banking Law, may be verified or acknowledged by including standard verification or acknowledgement language in the instrument and transmitting the signed instrument by fax or electronic means.

Provisions related to work restrictions.

  • The expiration dates of in-person restrictions and closings for businesses and places of public accommodation established in certain previous EOs are extended through April 15, 2020.28
  • As of March 28, 2020, only certain construction qualifies as an essential service not subject to in-person work restrictions.29 The Empire State Development Corporation is authorized to determine which projects are essential. All construction projects must use best practices to avoid COVID-19 transmission.
  • New York State employees deemed non-essential by their agency will work at home or be able to stay at home without charging their accruals until April 16, 2020.

Provisions related to elections.

  • A separate proclamation from the Governor is not needed for an election to fill a vacancy.30
  • The special election for the Queens Borough President is rescheduled for June 23, 2020, and only candidates eligible for the March 24, 2020 special election will appear on the ballot.
  • Only candidates previously qualified to appear on the ballot on April 28, 2020 will appear on the ballot for special elections rescheduled for June 23, 2020 by EO 202.12.
  • Circulating and filing of any designating or nominating petition for an office commencing March 31, 2020 is postponed.
  • School board, library board, and village elections scheduled to occur in April or May are postponed until at least June 1, 2020.

Other provisions.

  • A support person for patients giving birth is required for the immediate postpartum period in addition to during labor and delivery.31
  • School districts may pay for the cost of child care services provided under subdivision (i) of Section 414 of the Education Law.32
  • Current employees of OPWDD; OPWDD-approved providers; the Office of Mental Health (OMH); programs licensed, funded or approved by OMH; programs licensed or certified by the Office of Children and Family Services; or programs certified, funded or authorized by the Office of Addiction Services and Supports may be employed at a different provider or program among this group without undergoing a new background check if the employee has previously undergone such background checks. Providers also have the discretion to permit already-qualified individuals who are not listed on the Staff Exclusion List to work unsupervised while an updated background check is completed.33

Phillips Lytle stands ready to assist you on the application of these legal changes to your business. We are also prepared to provide counsel on the latest updates in this dynamic and unstable legal environment.

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  1. The licenses covered are the licenses issued by the Department of State under Articles 6-D, 7, 7-A, 8-B, 8-C, 27, 28, 35-B, 35-C, 37-A, 39-E, 39-G, 41, and Section 399-pp of the General Business Law; Articles 6-F, 6-H, and Sections 130-131 of the New York Executive Law; Articles 12-A, 12-B and 12-C of the Real Property Law; Article 25 of the New York Arts and Cultural Affairs Law.
  2. Section 1210.13 of Title 19 of the N.Y.C.R.R. is modified or suspended to accomplish this.
  3. Section 140(3) of the Transportation Law is modified or suspended to accomplish this tolling until April 26, 2020.
  4. Subdivision (a) of Section 301 of the Vehicle and Traffic Law is modified or suspended to accomplish this.
  5. Subdivision (3) of Section 6305 of the Education Law and subdivision (c) of Section 602.12 of Title 8 of the N.Y.C.R.R. are modified or suspended to accomplish this.
  6. Title 16 of McKinney’s Unconsolidated Laws, the Urban Development Corporation Act, is modified or suspended to accomplish this.
  7. [1] Section 103(2) of the General Municipal Law, Section 144(1) of the State Finance Law, Section 376(8)(a) of the Education Law, and Section 359(1) of the Public Authorities Law are modified or suspended to accomplish this.
  8. Sections 2800(1)(a) and (2)(a); 2801(1) and (2); 2802(1) and (2); 2824(2) of the Public Authorities Law are modified or suspended to accomplish this.
  9. Section 352-e(2) of the General Business Law is modified or suspended to accomplish this.
  10. Sections 806, 808, 809 and 814 of the Executive Law, Section 24-0801 of the Environmental Conservation Law and any associated regulations are modified or suspended to accomplish this.
  11. Section 94(10)(a-c) of the Executive Law is modified or suspended to accomplish this.
  12. Subdivision (5) of Section 6907 of the Education Law and associated regulations are modified or suspended to accomplish this. This applies to graduates of registered professional nurse and licensed practical nurse licensure qualifying educational programs registered by the State Education Department.
  13. Sections 6951, 6952, 6953 and 6955 of the Education Law are modified or suspended to accomplish this.
  14. Covered services are the services limited to certified settings under Sections 16.03 and 16.05 of the Mental Hygiene Law and Part 619 of Title 14 of the N.Y.C.R.R., which are modified to accomplish this.
  15. Section 633.16 of Title 14 of the N.Y.C.R.R. is modified or suspended to accomplish this.
  16. Section 6808(1) of the Education Law and any associated regulations are modified or suspended to accomplish this. The applicable FDA guideline is the FDA’s “Policy for Temporary Compounding of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency” (March 2002).
  17. Sections 6802, 6808 and 6841 of the Education Law and Parts 29.7 (10) and 63.6 of Title 8 of the N.Y.C.R.R. are modified or suspended to accomplish this.
  18. Pharmacists may dispense hydroxychloroquine or chloroquine when prescribed for an FDA-approved indication; for an indication supported by a citation included or approved for inclusion in the compendia specified in State clinical trials pursuant to 42 U.S.C. 1396r-8(g)(1)(B)(i); for patients in patient settings and acute settings; for residents in a subacute part of a skilled nursing facility; or as part of a study approved by an Institutional Review Board. This order amends the directive in Executive Order 202.10.
  19. Subdivision (11) of Section 17 of the Public Officers Law and associated regulations are modified or suspended to accomplish this.
  20. Paragraph (a) of subdivision (1) of Section 17 of the Public Officers Law and any associated regulations are modified or suspended to accomplish this.
  21. Section 307(1) of the State Technology Law is modified or suspended to accomplish this.
  22. Sections 131-u and 459(b) of the Social Services Law and Sections 408.6, 408.7 and 408.8 of Title 18 of the N.Y.C.R.R. are modified or suspended to accomplish this.
  23. Section 212 of the Retirement and Social Security Law is modified or suspended to accomplish this.
  24. Sections 3203 and 4510 of the Insurance Law are modified or suspended to accomplish this.
  25. Sections 3203, 3219 and 3220 of the Insurance Law are modified to accomplish this.
  26. Section 1116 and Articles 34, 53, 54 and 55 of the Insurance Law and Sections 54 and 226 of the Workers’ Compensation Law are modified to impose this moratorium, and this relief also applies to the insurance set forth in Paragraphs (16), (17), (20), (21), (24), (26) and (30) of Section 1113(a) of the Insurance Law.
  27. Section 576 of the Banking Law is modified to accomplish this. “Premium finance agencies” are defined by subdivision (7) of Section 554 of Article XII-B of the Banking Law.
  28. The EOs extended are EOs 202.3, 202.4, 202.5, 202.6, 202.7, 202.8, 202.10 and 202.11.
  29. EO 202.6 is modified to limit covered construction projects. Non-essential construction projects are subject to the in-person restrictions of EO 202.6 and subsequent EOs.
  30. Subdivisions (3) and (4) of Section 42 of the Public Officer’s Law are modified or suspended to accomplish this.
  31. EO 202.12 is modified to cover these periods.
  32. Subdivision (i) of Section 414 of the Education Law is modified or suspended to accomplish this.
  33. Sections 16.33, 16.34, 31.35 and 19.20 of the Mental Hygiene Law; Sections 378-a, 424-a and 495 of the Social Services Law; Sections 550, 633.5, 633.24 and 805 of Title 14 of the N.Y.C.R.R.; Article 3, Sections 442.18, 447.2, 448.3, 449.4, 450.9 and 451.6 of Title 18 of the N.Y.C.R.R.; and Sections 166-1.2, 180-1.5, 180-3.4, 182-1.5, 182-1.9, 182-1.11, 182-2.5, 182-2.9 and 6051.1 of Title 9 of the N.Y.C.R.R. are modified or suspended to accomplish this.