COVID-19: Application of New York State Executive Order 202.6 Mandating In-person Workforce Reductions

On March 18, 2020, New York State Governor Andrew Cuomo invoked his authority under New York State Executive Law § 29-a during the present COVID-19 disaster emergency to issue Executive Order 202.6, which, among other things, requires most employers in New York State to “reduce the in-person workforce at any work locations by 50% no later than March 20 at 8:00 p.m.” Based upon public comments made by the Governor this morning, we understand further that, later today, this mandatory 50% reduction of in-person workforce will be changed to a mandatory 75% reduction.

Executive Order 202.6 exempts application of these in-person workforce restrictions to “[a]ny essential business or entity providing essential services or functions[.]” The Executive Order expressly identifies the following as examples of such essential businesses and functions:

  • “Essential health care operations,” including “research and laboratory services”;
  • “Essential infrastructure,” such as “utilities, telecommunication, airports and transportation infrastructure”;
  • “Essential manufacturing,” such as “food processing and pharmaceuticals”;
  • “Essential retail,” such as “grocery stores and pharmacies”;
  • “Essential services,” such as “trash collection, mail, and shipping services”;
  • “News media”;
  • “Banks and related financial institutions”;
  • “Providers of basic necessities to economically disadvantaged populations,” likely including a food bank or a homeless shelter;
  • “Construction”;
  • Vendors that provide “essential services necessary to maintain the safety, sanitation and essential operations of residences” or the foregoing essential businesses; and
  • Vendors that provide “essential services or products,” such as “logistics,” “technology support,” and “child care,” for ensuring “the continuing operation of government agencies and [to] provide for the health, safety and welfare of the public[.]”

Pursuant to the last two of these categories, a business that would not otherwise be “essential” could be regarded as such, provided that, for example, it manufactures or supplies products for, or provides services to, a business that does perform essential functions.

The Empire State Development Corporation (ESDC) has been directed to “issue [additional] guidance as to which businesses are determined to be essential” no later than 5:00 p.m. today. We understand that this guidance is currently being formulated and will be posted on the ESDC’s Internet website by 5:00 p.m.

We are pleased to advise you about the application of the various essential function categories to your business. Subject to the guidance expected to be issued later today, we anticipate that, if your business determines that it satisfies one or more of the categories of essential functions identified by Executive Order 202.6 (or to be identified later today in the forthcoming guidance from the ESDC), your business may continue to maintain a fully staffed in-person workforce beyond March 20, 2020, at 8:00 p.m. while Executive Order 202.6 remains in effect.

Risks of self-determination that a business is essential are not only a violation of the Executive Order, but also a civil liability (such as workers’ compensation or third-party liability) that could attach to noncompliance in the event of a resulting mass illness or death. If a business is uncertain, but believes it should be deemed essential notwithstanding Executive Order 202.6, the Executive Order further permits any business to request an opinion from the ESDC that the business be deemed essential, should the ESDC “determine that it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond to [the COVID-19] disaster.” We understand that, by 5:00 p.m. today, the ESDC will post on its Internet website a waiver form that businesses may submit to the ESDC to seek a determination that they be considered essential.

Additional Assistance

Please contact Craig R. Bucki at cbucki@phillipslytle.com, or the Phillips Lytle attorney with whom you have a relationship, for additional questions about application of Executive Order 202.6. We can also provide assistance in preparing a waiver form for submission to the ESDC.