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March 19, 2020

State and Local Directives Regarding Essential and Non-Essential Personnel and Open Meetings

Over the last few months and week, the response to the novel coronavirus (COVID-19) continues to evolve across the world, including in New York State. Indeed, on January 30, the World Health Organization designated the COVID-19 outbreak as a public health emergency of international concern. The following day, the US Department of Health and Human Services secretary declared a public health emergency for the entire country.

Similarly, in an effort to address the pandemic and slow down exposure rates in New York State to protect its residents and visitors, Governor Andrew Cuomo issued Executive Order 202 on March 7, declaring an emergency for the entire state due to the COVID-19 virus until September 7.

Since that time, and based on the continued and growing documentation of travel-related and community contact transmission, Governor Cuomo has supplemented Executive Order 202 with additional directives concerning both state employees’ need to report to work and the requirements for public meetings in this ever-evolving public health emergency.

State and Local Personnel

On March 15, New York State Operations and Infrastructure director Kelly Cummings instructed all non-essential state employees in the New York City area (Rockland, Westchester, Bronx, Manhattan, State Island, Kings, Queens, and Nassau and Suffolk counties) to not report to work for two weeks and to work from home to the extent practical. For purposes of this directive, non-essential employees are those who do “not need to be physically present to perform job functions or they are not required to meet the core function and programs of their agency during this emergency response.” In contrast, essential employees are defined as “anyone whose job function is essential to the effective operation of their agency or authority, or who must be physically present to perform their job, or who is involved in the COVID-19 emergency response.”

The following day on March 16, the administration’s directive was extended across the state, directing all non-essential state employees not previously ordered to stay home to not report for work beginning on March 17 for two weeks. Governor Cuomo then amended Executive Order 202 for the fourth time, extending the period of time for non-essential state employees to not report to work until April 15 and directing local government and political subdivisions to allow 50 percent of its non-essential personnel (as determined by the local government) to be able to work from home or take leave without charging accruals, except for those personnel essential to the locality’s response to the COVID-19 emergency.

As a result, for at least until April 15 and perhaps longer depending on the progression of COVID-19 across New York State, interactions with the state and localities are likely to be greatly impacted.

Open Meetings

On March 12, Governor Cuomo signed Executive Order 202.1 to address, among other things, the New York Open Meetings Law that requires state and local agencies and authorities to conduct official business in an open and public matter. In doing so, the executive order allows meetings of public bodies to be held remotely by conference call or similar services, provided the public has the ability to view or listen to the proceedings and that the meetings are recorded and later transcribed. The executive order will remain in effect through April 11.

If you have questions regarding the content of this alert, please contact Yvonne Hennessey, Environmental Practice Area chair and co-team leader of the Oil & Gas, Linear Infrastructure, and Energy Market Teams, at yhennessey@barclaydamon.com; Brenda Colella, Regulatory Practice Area co-chair and co-team leader of the Renewable Energy and Energy Market Teams, at bcolella@barclaydamon.com; or another member of the firm’s Regulatory Practice Area.

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