On March 18, 2020, pursuant to Executive Order No. 202.6: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, Governor Cuomo directed that all businesses and not-for-profit entities in New York State employ any telecommuting or work from home procedures that they can safely perform to the maximum extent possible.
No later than March 21, 2020 at 8 p.m., each for-profit or not-for-profit employer (excluding state and local governments and authorities) must reduce their in-person workforce at each business location by 75% from pre-state of emergency declaration employment levels. Further, no later than March 22, 2020 at 8 p.m., the aforementioned employers must reduce their in-person workforce by 100%. Exempted from the order are "essential businesses or entities", whether for profit or non-profit, which are enumerated in the Order and accompanying guidance.
Businesses not listed as essential that nevertheless believe they are providing essential services or functions can request an opinion from the New York State Department of Economic Development d/b/a/ Empire State Development ("ESD") that they should be excluded from the Order. EMD may in its discretion grant such request if it determines it is in the State's best interest to do so. Prior to making any such request, businesses should be certain they are not already covered by the applicable guidance.
Note that for businesses or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies or support are exempt.
To request designation as an essential business for purposes of complying with the Order, businesses should fill out the form provided by the ESD which can be accessed here.
For your ease of reference, below is a list of essential business or entities based on guidance issued by ESD. If you have any questions regarding compliance with the Order or a request for designation as an essential business, we can assist you with making an inquiry directly with the ESD.
ESD List of Essential Services
1. Essential health care operations including:
- research and laboratory services
- hospitals
- walk-in-care health 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
- medical supplies and equipment providers
2. Essential infrastructure including:
- utilities including power generation, fuel supply and transmission
- public water and wastewater
- telecommunications and data centers
- airports/airlines
- transportation infrastructure such as bus, rail, or for-hire vehicles, garages
3. Essential manufacturing including:
- food processing, including all foods and beverages
- chemicals
- medical equipment/instruments
- pharmaceuticals
- safety and sanitary products
- telecommunications
- microelectronics/semi-conductor
- agriculture/farms
- paper products
4. Essential retail including:
- grocery stores including all food and beverage stores
- pharmacies
- convenience stores
- farmer's markets
- gas stations
- restaurants/bars (but only for take-out/delivery)
- hardware and building material stores
5. 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
- animal shelters or animal care or management
6. News media
7. Financial Institutions including:
- banks
- insurance
- payroll
- accounting
8. Providers of basic necessities to economically disadvantaged populations including
- homeless shelters and congregate care facilities
- food banks
- 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
9. Construction including:
- skilled trades such as electricians, plumbers
- other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
10. Defense
- defense and national security-related operations supporting the U.S. Government or a contractor to the US government
11. 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
- security
- emergency management and response
- building cleaners or janitors
- general maintenance whether employed by the entity directly or a vendor
- automotive repair
- disinfection
- doormen
12. Vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including:
- logistics
- technology support
- child care programs and services
- government owned or leased buildings
- essential government services
In addition, the ESD has published guidance indicating certain restrictions on requesting designation as an essential business for the following:
- Any business that only has a single occupant/employee (i.e. gas station) has been deemed exempt and need not submit a request to be designated as an essential business.
- Businesses ordered to close on Monday, March 15, 2020 under the restrictions on any gathering with 50 or more participants, including but not limited to, bars, restaurants, gyms, movie theaters, casinos, auditoriums, concerts, conferences, worship services, sporting events, and physical fitness centers, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business.
Our attorneys continue to monitor the impact of coronavirus on the markets, and we have developed a dedicated COVID-19 Resource Library to provide insights on regulations and/or changes to the law. Please contact your Pryor Cashman attorney for specific advice or counsel.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
