Key takeaways

• On April 9, 2020, Empire State Development released new guidance further clarifying “Essential Businesses”

• This guidance imposes new restrictions and close scrutiny of the guidance is recommended to ensure compliance

• Governments and municipalities remain “essential” but are subject to other provisions

Late on March 19, 2020 Empire State Development (ESD) released guidance on the meaning of “Essential Businesses” in relation to Gov. Andrew Cuomo’s executive orders pertaining to the state’s response to the COVID-19 pandemic. ESD released updated guidance on March 27, April 9,  and April 18, 2020. The full text of the ESD guidance is reproduced below, with the April updates in italicized, red font. This information supersedes any prior information provided on essential services in prior firm alerts.

State and local governments, including municipalities, authorities, and school districts, are exempt from these essential business reductions, but are subject to other provisions that restrict non-essential, in-person workforce and other operations under Executive Order 202.

For purposes of Executive Order 202.6, “Essential Business,” shall mean businesses operating in or as:

1. Essential health care operations including

• • research and laboratory services
  • hospitals
  • walk-in-care health clinics and facilities
  • emergency veterinary, livestock medical services
  • senior/elder care
  • medical wholesale and distribution
  • home health care workers or aides for the elderly
  • doctor and emergency dental
  • nursing homes, residential health care facilities, or congregate care facilities
  • medical supplies and equipment manufacturers and providers
  • licensed mental health providers
  • licensed substance abuse treatment providers
  • medical billing support personnel
  • emergency chiropractic services
  • physical therapy, prescribed by medical professional
  • occupational therapy, prescribed by medical professional

2. Essential infrastructure including

• • public and private utilities including but not limited to power generation, fuel supply, and transmission
  • public water and wastewater
  • telecommunications and data centers
  • airlines/airports
  • commercial shipping vessels/ports and seaports
  • transportation infrastructure such as bus, rail, for-hire vehicles, garages
  • hotels, and other places of accommodation

3. Essential manufacturing including

• • food processing, manufacturing agents including all foods and beverages
  • chemicals
  • medical equipment/instruments
  • pharmaceuticals
  • sanitary products including personal care products regulated by the Food and Drug Administration (FDA)
  • telecommunications
  • microelectronics/semi-conductor
  • food-producing agriculture/farms
  • household paper products
  • defense industry and the transportation infrastructure
  • automobiles
  • any parts or components necessary for essential products that are referenced within this guidance

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, appliance, and building material stores
  • pet food
  • telecommunications to service existing customers and accounts
  • delivery for orders placed remotely via phone or online at non-essential retail establishments; provided, however, that only one employee is physically present at the business location to fulfill orders

5. Essential services including

• • trash and recycling collection, processing, and disposal
  • mail and shipping services
  • laundromats and other clothing/fabric cleaning services
  • building cleaning and maintenance
  • child care services
  • bicycle repair
  • auto repair
  • automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
  • marine vessel repair and marinas, but only to support government or essential commercial operations and not for recreational purposes
  • warehouse/distribution and fulfillment
  • funeral homes, crematoriums and cemeteries
  • storage for essential businesses
  • maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
  • animal shelters and animal care including dog walking, animal boarding
  • landscaping, but only for maintenance or pest control and not cosmetic purposes
  • designing, printing, publishing and signage companies to the extent that they support essential businesses or services
  • remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted

6. News media
7. Financial Institutions including

• • banks or lending institution
  • insurance
  • payroll
  • accounting
  • services related to financial markets, except debt collection

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

All non-essential construction must safely shut down, except emergency construction, (e.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, but only to the point that it is safe to suspend work).

Essential construction may proceed, to the extent that:

• • the construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
  • the construction is for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
  • the construction is necessary to protect the health and safety of occupants of a structure;
  • the construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
  • the construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ located here.
  • the construction is for existing (e., currently underway) projects of an essential business; or
  • the construction work is being completed by a single worker who is the sole employee/worker on the job site.

At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.

Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site. Any other business activities being completed that are not essential are still subject to the restrictions provided by Executive Order 202.

As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.

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 businesses including

• • law enforcement, including corrections and community supervision
  • fire prevention and response
  • building code enforcement
  • security
  • emergency management and response, EMS and 911 dispatch
  • building cleaners or janitors
  • general maintenance whether employed by the entity directly or a vendor
  • automotive repair
  • disinfection
  • residential moving services

12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:

• • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services
  • any personnel necessary for online or distance learning or classes delivered via remote means

13. Recreation

• • Parks and other open public spaces, except playgrounds and other areas of congregation where social distancing cannot be abided
  • However, golf courses are not essential and cannot have employees working on-premise; notwithstanding this restriction, essential services, such as groundskeeping to avoid hazardous conditions and security, provided by employees, contractors, or vendors are permitted and private operators may permit individuals access to the property so long as there are no gatherings of any kind and appropriate social distancing of six feet between individuals is strictly abided
  • Marinas, boatyards, and recreational marine manufacturers, for ongoing marina operations and boat repair/maintenance, where such facilities adhere to strict social distancing and sanitization protocols. Use of such sites for the purposes of personal use or operation of boats or other watercraft is permissible, provided that no establishment offer chartered watercraft services or rentals. Restaurant activity at such sites are limited to take-out or delivery only.

14. Professional services with extensive restrictions

• • Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
  • Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).

Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g., worship services, parties, celebrations, or other social events) are canceled or postponed. Congregate services within houses of worship are prohibited. Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming. 

Restrictions on requesting designation as an essential business:

Pursuant to the Governor’s Executive Orders, the following businesses are specifically enumerated as non-essential and are, therefore, unable to request a designation:

• • Any large gathering or event venues, including but not limited to establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience;
  • Any dine-in or on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption;
  • Any facility authorized to conduct video lottery gaming or casino gaming;
  • Any gym, fitness centers, or exercise classes, except the remote or streaming service noted above;
  • Any movie theater;
  • Any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease;
  • All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions; and
  • Any barbershops, hair salons, tattoo or piercing parlors and related personal care services, including nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services.

For more information, please contact:

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