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March 20, 2020

COVID-19: Non-Essential NYS Businesses to Reduce Workforce by 100 Percent; ESD Issues Guidance for Determining Essential Businesses

Modifications to Executive Order

On March 18, Governor Cuomo issued Executive Order 202.6 directing all NYS businesses and not-for-profits to maximize the use of telecommuting and work from home procedures and otherwise reduce in-person workforces by 50 percent by tonight at 8:00 p.m. Yesterday, Governor Cuomo modified the workforce reduction requirements to 75 percent for all in-person workforces at any work locations. Today, however, Governor Cuomo announced during a press conference that he will be executing an executive order directing all non-essential businesses to reduce the in-person workforce at any work location by 100 percent by March 22. Further details will be set forth in the new executive order, which is forthcoming.  

In addition, effective March 21 at 8:00 p.m. and until further notice, all barbershops, hair salons, tattoo or piercing parlors, and related personal care services shall be closed to the public. This includes nail technicians, cosmetologists and estheticians, electrolysis services, and laser hair removal services. 

Empire State Development Guidance 

Yesterday, the Empire State Development Corporation (ESD) issued guidance for determining which businesses are essential and not subject to the 100-percent workforce reduction requirements. Specifically, for purposes of Executive Order 202.6, essential businesses, include:

1. Essential health care operations

  • 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, residential health care facilities, and congregate care facilities
  • Medical supplies and equipment providers

2. Essential infrastructure

  • Utilities, including power generation, fuel supply, and transmission
  • Public water and wastewater
  • Telecommunications and data centers
  • Airports and airlines
  • Transportation infrastructure, including buses, railways, for-hire vehicles, and garages

3. Essential manufacturing

  • Food processing, including all foods and beverages
  • Chemicals
  • Medical equipment and instruments
  • Pharmaceuticals
  • Safety and sanitary products
  • Telecommunications
  • Microelectronics and semi-conductors
  • Agriculture and farms
  • Paper products

4. Essential retail

  • Grocery stores, including all food and beverage stores
  • Pharmacies
  • Convenience stores
  • Farmer’s markets
  • Gas stations
  • Restaurants and bars (only take-out and delivery)
  • Hardware and building material stores

5. Essential services

  • Trash and recycling collection, processing, and disposal
  • Mail and shipping services
  • Laundromats and dry cleaners
  • Building cleaning and maintenance
  • Child care services
  • Auto repair
  • Warehouse distribution and fulfillment
  • Funeral homes, crematoriums, and cemeteries
  • Storage for essential businesses
  • Animal shelters and animal care or management

6. News media

7. Financial institutions

  • Banks
  • Insurance
  • Payroll
  • Accounting

8. Providers of basic necessities to economically disadvantaged populations

  • 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; and those operating community shelters and other critical human services agencies providing direct care or support

9. Construction

  • Skilled trades such as electricians and plumbers 
  • Other related construction firms and professionals for essential infrastructure or emergency repair and safety purposes

10. Defense

  • Defense and natural security-related operations supporting the US government or a contractor to the US government

11. Essential services necessary to maintain the safety, sanitation, and essential operations of residences or other essential businesses

  • 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
     

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

  • Logistics
  • Technology support
  • Child care programs and services
  • Government-owned or leased buildings
  • Essential government services

The ESD confirmed that if the function of a business or entity is not listed above and the business or entity believes it is essential or is an entity providing essential services or functions, it may request designation as an essential business.
 
Notably, the ESD guidance also confirmed that businesses should only request the designation if they are not covered by the guidance above.
 
The ESD also set forth the following restrictions on requesting designation as an essential business:

  • Any business that only has a single occupant/employee (e.g., a gas station) has been deemed exempt and need not submit a request to be designated as an essential business.
  • Businesses ordered to close on Monday, March 15 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. 

These issues and other developments affecting employment as a result of COVID-19 shall be discussed in detail during Barclay Damon’s free “NYS’s COVID-19 Sick Leave Act and Mandatory Workforce Reductions” webinar on Monday, March 23.

If you have any questions regarding the content of this alert, please contact Chris Harrigan, partner, at charrigan@barclaydamon.com or another member of the firm’s Labor & Employment Practice Area.

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