Knowledge

NY Issues Executive Order for Private Businesses and Employees Impacted by COVID-19

March 19, 2020

Christopher P. Maugans Caroline J. Berdzik

Key Takeaways:

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
Governor Andrew M. Cuomo announced a bill guaranteeing job protection and pay for New Yorkers who have been quarantined because of novel coronavirus

New York Executive Order 202.6

As of March 18, 2020, Gov. Andrew M. Cuomo has implemented six 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.

New York Executive Order 202.6 specifies that effective Friday, March 20 at 8 p.m.:

All businesses and nonprofits are to utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize
Each employer [except essential businesses and or entity providing essential services or functions] shall reduce the in-person workforce at any work locations by 50 percent no later than March 20 at 8 p.m.

NOTE: On March 19, 2020, Governor Cuomo signed an additional executive order and made the following comments during a press conference: “We said voluntary work from home, mandatory closing of schools statewide, mandatory of state and local workforce, mandatory tristate agreement on bars, restaurants, and gyms. Mandatory in-office workforce cut by 50%. We said that yesterday. The numbers have gone up overnight. I’m going to increase the density control today. No more than 25% of people can be in the workforce. Yesterday was 50%, we’re reducing it again, except the essential services that we spoke about yesterday. That means 75% of the workforce must stay at home and work from home. Again, voluntarily, I’m asking all businesses to have people work from home. As a mandate, 75% of your employee base must work from home.”

The executive order includes broad categories of exempt essential businesses that are not subject to the in-person restrictions. The executive order further provides that any other business may ask to be deemed essential by requesting an opinion from the Empire State Development Corporation. Empire State Development Company (ESDC) has been directed to issue guidance by 5 p.m. on March 19. Note that ESDC already has a web address for questions related to COVID-19.

The executive order includes as essential services:

Essential health care operations, including research and laboratory services
Essential infrastructure including utilities, telecommunication, airports, and transportation infrastructure
Essential manufacturing, including food processing and pharmaceuticals
Essential retail including grocery stores and pharmacies
Essential services including trash collection, mail, and shipping services
News media
Banks and related financial institutions
Providers of basic necessities to economically disadvantaged populations
Construction
Vendors of essential services necessary to maintain the safety, sanitation, and essential operations of residences or other essential businesses
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

Bill Requiring Payment of Sick Leave by New York Employers:

The governor announced on March 17, 2020, that he and the legislature had 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.

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.
This law is effective immediately.

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