*** IMPORTANT NOTE: On April 9, 2020, the State of New York released updated guidance that modifies some of the content discussed below. Read more on our updated blog post here. ***
Beginning Sunday, March 22, 2020, in accordance with Executive Order 202.8 issued by Governor Andrew Cuomo, only essential businesses and not-for-profit entities in New York State may utilize an in-person workforce. All businesses, including those deemed essential, must utilize teleworking arrangements and maintain social distancing to the greatest extent possible. On April 7, 2020, in a separate Executive Order, the Governor announced that these in-person workforce restrictions will be effective until 11:59 PM on Wednesday, April 29, 2020, unless further extended by a future Executive Order.
The New York State Department of Economic Development d/b/a Empire State Development has issued guidance for determining whether a business enterprise is essential. According to the guidance, the following are considered “essential businesses” and are thus exempt from the Order:
- Essential health care operations – including research and laboratory services, hospitals, walk-in health care facilities, emergency veterinary and livestock services, elder care, medical wholesale and distribution, home health care workers or aides, doctor and emergency dental offices, nursing homes and similar facilities, medical supplies and equipment providers, licensed mental health and substance abuse treatment providers, and medical billing staff.
- Essential infrastructure – including utilities such as power generation and fuel supply, public water and wastewater, telecommunications and data centers, airports/airlines, other transportation infrastructure, and hotels and places of accommodation.
- Essential manufacturing – including food processing, chemicals, medical equipment/instruments, pharmaceuticals, sanitary products, telecommunications, microelectronics/semi-conductor, agriculture/farms, household paper products, and defense industry and transportation infrastructure.
- Essential retail – including grocery stores, food and beverage stores, pharmacies, convenience stores, farmer’s markets, gas stations, restaurants and bars for take-out only, pet food, and hardware and building material stores.
- Essential services – including trash and recycling services, mail and shipping services, laundromats, building cleaning and maintenance, child care services, auto and bicycle repair, limited automotive sales conducted remotely or electronically, warehouse distribution and fulfillment, funeral homes, crematoriums, cemeteries, storage for essential businesses, maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein, and animal shelters.
- News media.
- Financial institutions – including banks, lending institutions, insurance, payroll, accounting, and services related to financial markets.
- Providers of basic necessities to economically disadvantaged populations – including homeless shelters, congregate care facilities, food banks, and other human service providers.
- Construction – which includes only: (a) emergency construction (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), and (b) essential construction (includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters).
- Defense and national security-related operations.
- 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, auto repair, disinfection, and residential moving services.
- Vendors that provide essential services or products needed to ensure the continuing operation of government agencies and to provide for the health, safety and welfare of the public – including logistics, technology support for online services, child care services, government owned or leased buildings, essential government services, and any personnel necessary for on-line or distance learning or classes delivered via remote means.
Essential businesses must continue to comply with health department guidance and are strongly encouraged to maintain social distancing to the extent possible.
If an employer’s business is not listed above, but they believe that it is essential or that it is an entity providing essential services, the employer may request a designation as an essential business on the state’s website. However, businesses with only one employee are automatically deemed exempt and need not request a designation. In addition, businesses ordered to close based on the state’s restrictions on gatherings with more than 50 participants (e.g., gyms, movie theatres, sporting events) must remain closed and should not request an essential business designation.
The Guidance also clarifies that the order applies to each business location individually, rather than the business as a whole. In addition, if a business or entity provides both essential and non-essential services, only those services that are necessary to support essential services are exempt from the restrictions.
Also effective March 21, 2020 (and until further notice), all barbershops, hair salons, tattoo or piercing parlors and related personal care services must close to members of the public. This also includes: (1) nail technicians; (2) cosmetologists and estheticians; and (3) the provision of electrolysis or laser hair removal services.
* * *
Our team is closely monitoring the directives being issued by the Governor and will continue to provide updates to this post as they become available.
Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns. Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.