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April 10, 2020

NYS Essential Business Update: Attorney General's Office Ramps up Enforcement Efforts; ESD Significantly Revises Guidance

The NYS Attorney General’s Office has increased enforcement efforts in response to complaints and inquiries from employees and others challenging essential business designations and, for essential businesses, compliance with NYS requirements to utilize telecommuting and working from home, cease non-essential business operations, protect vulnerable employees, and otherwise comply with Department of Health and Centers for Disease Control guidelines regarding workplace safety (e.g., social distancing, personal protective equipment, cleaning and disinfecting, etc.).

Specifically, the Attorney General’s Office is contacting employers directly and requesting information on short notice (usually 24 hours) with the threat of cease and desist letters, civil fines, and legal action seeking injunctive relief for failure to comply. Due to the volume of complaints and inquiries, the NYS Department of Labor is assisting with inquiries in partnership with the Attorney General’s Office. Local municipal legal departments have also engaged in active enforcement efforts in response to complaints and inquiries from the public.

Barclay Damon is actively assisting a number of employers in responding to these requests. These enforcement efforts will likely increase, especially considering yesterday’s significantly revised guidance from Empire State Development (ESD) for determining what businesses are essential and not subject to New York State’s 100% workforce reduction requirements. 

Notable revisions include: 

  1. An overhaul to the “Construction” category 
  2. The addition of both “Recreation” and “Professional Services With Extensive Restrictions” categories
  3. The cancellation or postponement of non-essential gatherings of individuals of any size for any reasons, including guidance related to houses of worship
  4. Additional guidance regarding restrictions on requesting designation as an essential business

In this regard, pursuant to ESD’s revised guidance, for purposes of Governor Cuomo’s Executive Order 202.6, “Essential Businesses” now include the following (newly added language is underlined):

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 professionals
  • Occupational therapy, prescribed by medical professionals

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 buses, railways, for-hire vehicles, and 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 
  • Telecommunications
  • Microelectronics/semi-conductor
  • Food-producing agriculture/farms
  • Household paper products
  • Defense industry and 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 and bars (but only for take-out and 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
  • Childcare 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 and 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 and pest control and not cosmetic purposes
  • Designing, printing, publishing, and signage companies to the extent 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 institutions
  • 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; and 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 the 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 one of the following applies:

  • The construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals, or health care 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 this FAQ
  • The construction is for existing (i.e. currently underway) projects of an essential business
  • The construction work is being completed by a single worker who is the sole employee and 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/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 and 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 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 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, childcare, and services including but not limited to:

  • Logistics
  • Technology support for online services
  • Childcare 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
  • However, the use of boat launches and marinas for recreational vessels is not considered essential

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 and 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).

In addition to the above revisions to ESD’s categories of essential businesses, in respect to non-essential gatherings, ESD’s updated guidance provides as follows: 

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. 

The revised guidance also provides the following restrictions regarding essential business designation requests:

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
  • 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.

Barclay Damon will continue to keep you updated regarding any additional revisions to ESD’s essential business guidance. In the meantime, please contact Barclay Damon with any questions regarding an essential business designation. 

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.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.
 

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