New York Gov. Andrew Cuomo issued the latest in a series of executive orders on March 30, 2020, extending the closure of nonessential business workplaces through at least April 15
New York Gov. Andrew Cuomo issued the latest in a series of executive orders on March 30, 2020, extending the closure of nonessential business workplaces through at least April 15, 2020. This latest order follows prior orders in which the governor ordered that nonessential businesses put in place telecommuting or work-from-home procedures to the maximum extent possible and under which nonessential businesses were required to close in-office personnel functions effective at 8 p.m. on March 22, 2020.
Nonessential businesses should make all efforts to comply with closure requirements to avoid costly penalties and fines.
Essential Businesses Overview
Gov. Cuomo’s initial order, on March 18, provided a non-exhaustive list of essential businesses and directed the Empire State Development Corporation (ESDC) to issue guidance as to which businesses are determined to be essential. The guidance issued by ESDC lists twelve categories of businesses and provides non-exhaustive lists of essential businesses falling within each category:
- Essential health care operations;
- Essential infrastructure, including hotels and places of accommodation;
- Essential manufacturing;
- Essential retail, including restaurants and bars for take-out/delivery only;
- Miscellaneous essential services, including laundromats, bicycle and auto repair and funeral homes;
- News media;
- Financial institutions, including insurance, payroll and accounting;
- Providers of basic necessities to economically disadvantaged populations, including homeless shelters and food banks;
- Essential services to maintain the safety, sanitation and essential operations or residences or other businesses, including building cleaning, general maintenance and disinfection; and
- Vendors that provide essential services or products, including logistics and technology support, child care and related services.
Any business not falling within the categories listed above or the examples provided within each category may be deemed essential after requesting an opinion from ESDC. In evaluating these requests, ESDC shall determine whether “it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond to this disaster.” The request form is available here. Importantly, businesses that fit within the categories and examples listed in ESDC’s guidance do not need to apply to ESDC to continue operating their workplaces—they are already deemed essential.
The guidance provides some further points of clarification. First, businesses with both essential and nonessential functions must limit onsite operations to their essential functions and functions necessary to support essential functions. Second, businesses closed by the governor’s earlier order closing bars, restaurants, gyms and the like are ineligible for, and may not seek, designation as essential. This rule does not cover take-out and delivery functions, which are expressly deemed essential. Third, businesses that continue to operate must comply with Department of Health guidance for maintaining a clean and healthy workplace.
ESDC has also published answers to frequently asked questions. In the FAQs, ESDC states that vendors, suppliers and other businesses supporting the operations of an essential business are exempt from the workplace reduction order. Moreover, even closed, nonessential businesses may have a single person visit the workplace temporarily to perform specific tasks, such as collecting mail, so long as they are not in contact with other people.
Businesses violating the executive order’s workplace reduction/closure requirements are subject to fines under Section 12 of the Public Health Law, including fines of up to $2,000 for a first violation and up to $5,000 for subsequent violations.
Gov. Cuomo’s latest order also clarifies whether construction is an essential business. Only “certain” construction is to be deemed essential, and ESDC has updated its guidelines accordingly. Emergency projects to protect health and safety, efforts to secure existing projects to let them lie dormant safely, infrastructure projects and projects related to health care and affordable housing/homeless shelters may continue. Single-worker projects are exempt and may continue. Fines for violation of the order related to construction are up to $10,000 per violation.
Notably, while this latest executive order extends the restrictions through April 15, it is expected that the restrictions will be further extended by subsequent executive order.
For more information about this alert, please contact Carolyn D. Richmond at email@example.com or 212.878.7983, Jordan E. Pace at 212.878.7993 firstname.lastname@example.org, Glenn S. Grindlinger at email@example.com or 212.905.2305, or any member of the firm’s New York Labor & Employment Department.