Key Takeaways:

• At a press conference on March 20, Gov. Andrew Cuomo indicated he will be issuing an order directing non-essential businesses to reduce in-person employees 100 percent

• Effective Friday, March 20 at 8 p.m., New York Executive Order 202.6 calls for businesses to use telecommuting to the extent possible and, with the exception of essential businesses, reduce in-person employees at any location by 50 percent with a further reduction by 25 percent going into effect March 21 at 8 p.m.

• Gov. Cuomo also announced a bill guaranteeing job protection and pay for New Yorkers who have been quarantined because of the novel coronavirus

• On March 27, 2020 Empire State Development released new guidance mandating that “non-essential” construction must cease operations

New York Executive Orders 202.6 and 202.7

As of March 20, 2020, Gov. Andrew M. Cuomo has implemented several executive orders pertaining to the coronavirus that are in effect across New York State. The executive orders provide modifications of various laws affecting various industries.  The significant part of the Executive Orders direct reduction of in-person workforces.

• New York Executive Order 202.6, issued March 18, specifies that effective Friday, March 20 at 8 p.m.:
  • All businesses and nonprofits are to use, to the maximum extent possible, any telecommuting or work from home procedures that are safely available
  • Each employer (except essential businesses and/or entities providing essential services or functions) shall reduce their in-person workforce at any work locations by 50 percent no later than March 20 at 8 p.m.
• New York Executive Order 202.7, issued March 19, directs employers to reduce onsite work forces at all locations by 75 percent no later than March 21 at 8 p.m.
• At a press conference on the morning of March 20, Gov. Cuomo indicated he will be issuing another Executive Order later in the day with further direction to employers to reduce their in-person workforces by 100 percent at non-essential business locations

Also effective March 21, 2020 at 8 p.m. and until further notice, all barbershops, hair salons, tattoo or piercing parlors, and related personal care services will be closed to members of the public. This shall also include nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services, as these services cannot be provided while maintaining social distance.

Essential Businesses: Definitions and Waivers

Late on March 19, Empire State Development released guidance on the meaning of “Essential Businesses.” ESD released updated guidance on March 27. The full text of the ESD guidance is reproduced below, with the March 27 updates in italicized, red font.

ESSENTIAL BUSINESSES OR ENTITIES, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction.  (Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health).

For purposes of Executive Order 202.6, “Essential Business,” means:

1. 1. 1. 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

1. 1. 1. 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

1. 1. 1. 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

1. 1. 1. 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

1. 1. 1. 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
        • Bicycle repair
        • Laundromats and other clothing/fabric cleaning services
        • Automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only

1. 1. 1. 6. News media
         7. Financial Institutions including

• • • • • banks
        • insurance
        • payroll
        • accounting

1. 1. 1. 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

1. 1. 1. 9. Construction

• • • • • All non-essential construction must shut down except emergency construction, (g., a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
        • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
        • For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

1. 1. 1. 10. Defense

• • • • • defense and national security-related operations supporting the U.S. Government or a contractor to the U.S. government

1. 1. 1. 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

1. 1. 1. 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

Empire State Development clarified that requests by businesses to be designated as an essential function as described above should only be made if these businesses are not covered by the guidance. These businesses may apply for a waiver.

The businesses that were ordered to close remain closed under this guidance. Businesses ordered to close on Monday, March 15, 2020 under the restrictions on any gathering with 500 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 for purposes of this guidance.

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.

Bill Requiring Payment of Sick Leave by New York Employers

Gov. Cuomo announced on March 17, 2020, that he and the legislature had reached an agreement on a bill guaranteeing job protection and pay for New Yorkers who have been quarantined because of novel coronavirus. The final version of the bill was signed on March 18, 2020. The measure seeks to address concerns about lost wages for thousands of people in quarantine—with more to come—as part of the efforts to contain the coronavirus pandemic. The bill defines mandatory or precautionary order of quarantine or isolation to mean a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, or any government entity duly authorized to issue such order due to COVID-19. The law is effective immediately.

[Please click here to read the most updated analysis of this bill].

Key provisions include:

• Employers with 10 or fewer employees as of January 1, 2020, must provide unpaid sick leave to employees subject to a mandatory or precautionary quarantine until the end of the quarantine. The employee in this category is entitled to Paid Family Leave benefits under New York law.
• Employers with 10 or fewer employees as of January 1, 2020, and with a net income of greater than $1 million in the previous tax year: five days of paid sick leave and unpaid leave through the duration of the quarantine. The employee will be eligible for benefits under the Paid Family Leave law.
• Employers with between 11 and 99 employees as of January 1, 2020: five days of paid sick leave and unpaid leave through the duration of the quarantine. The employee will be eligible for benefits under the Paid Family Leave law.
• Employers with 100 or more employees as of January 1, 2020: 14 days of paid sick leave during any mandatory or precautionary quarantine.
• Public employers, including the state, county, city, town, village, school district, BOCES, any governmental entity operating a college or university, public improvement or special district including police or fire districts, public authority or public benefit corporation, or any other public: 14 days of paid sick leave at regular rate of pay for employee or officer who is absent from work due to the mandatory or precautionary order of quarantine or isolation. This leave cannot be charged against the employee’s accruals.
• Employees returning from this leave must be restored to the position held prior to any leave taken pursuant to this act with the same pay and other terms and conditions of employment.
• No employer shall discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee because such employee has taken leave pursuant to the act.
• The provisions of the act do not apply in cases where an employee is deemed asymptomatic or has not yet been diagnosed with any medical condition and is physically able to work while under a mandatory or precautionary order of quarantine or isolation, whether through remote access or other similar means.
• If a federal law passes providing sick leave and/or employee benefits related to COVID-19, this law’s provisions, including but not limited to, paid sick, leave, paid family leave, and benefits due to disability, shall not be available to employees otherwise subject to this law, unless New York’s law provides for greater benefits. As President Trump signed a coronavirus aid package on March 18, we are examining the impacts of that legislation on the New York State legislation.

For more information, please contact:

• Kristin Klein Wheaton
• Christopher P. Maugans
• Caroline J. Berdzik
• Or another member of our Employment and Labor practice