May 19, 2020 Executive Orders 202.28 through 202.31: Transition from New York on Pause to New York Forward, School Closures, Open Meetings Law and the Moratorium on Evictions and Mortgage Foreclosures
KEEPING YOU INFORMED…
Governor Cuomo recently issued Executive Orders 202.28 through 202.31 as part of the State’s ongoing efforts to address the COVID-19 pandemic. This memorandum addresses the provisions of these Orders that: (1) modify “New York On Pause” for employers; (2) keep schools “closed” with respect to in-person instruction through the end of the school year; (3) continue the suspension of certain Open Meetings Law requirements; and (4) extend and refine previously issued orders related to landlords, tenants and mortgages.
Transition from New York “On Pause” to New York Forward
The Statewide New York “On Pause” Order expired on May 15, 2020. For five of the ten regions of the State, and for most employers, the Order has been extended through at least May 28, 2020. This extension includes the provisions that closed or restricted business operations and limited non-essential gatherings of individuals of any size for any reason (e.g., parties, celebrations, games, meetings or other social events). The Executive Order requiring local governments and political subdivisions to allow 50% of their non-essential employees to work from home or take leave without charging accruals is also extended through at least May 28, 2020.
The phased-in reopening of regions that have met seven public health benchmarks (currently, the Finger Lakes, Central New York, Mohawk Valley, Southern Tier and the North Country regions) was permitted, starting on May 15, 2020. In Phase One, only construction, manufacturing, wholesale trade, agriculture, forestry, fishing and select retail (limited to curbside or in-store pickup or drop off) may open. Additional regions will be permitted to re-open Phase One industries without further Executive Order after meeting the seven benchmarks.
When businesses reopen, they will not be returning to business as usual. The State has published industry specific guidelines for businesses to implement as they become eligible to reopen. The Guidelines are available here: https://forward.ny.gov/industries-reopening-phase. They set forth mandatory and recommended best practices. Among the mandatory requirements is the obligation for the owner or agent of each business to electronically submit an affirmation confirming that the owner or agent has read and agrees to abide by the Guidelines. Each business must also develop a written Safety Plan outlining how the spread of COVID-19 will be prevented in that workplace. The State has provided a template that may be used to assist businesses in fulfilling this requirement. A copy of the Plan must be maintained on the business’ premises and available for inspection by the State Department of Health or local health or safety authorities.
Executive Order 202.28 extends the period during which schools will remain “closed” for purposes of in-person student instruction “through the remainder of the school year.” During this time, districts must continue to provide alternative instruction, distribute and make available meals, and provide child care. The Order is silent with regard to the date on which the school year may end. The Order also does not explicitly state that schools must “continue to first use any vacation or snow days remaining” as had been required by Executive Orders 202.11, 202.14 and 202.18. Thus, Executive Order 202.28 appears to give districts the flexibility to determine the school calendar for the remainder of the school year.
We are aware that several organizations have requested that the Governor’s office and/or the State Education Department (“SED”) provide further guidance regarding the school calendar for the rest of the 2019-2020 school year. As of May 18, none has been issued.
Because the school calendar and contractual obligations are unique to each district, we recommend that districts consult with us before making any adjustments to their calendar as compliance with the Governor’s Executive Orders is essential to qualifying for State Aid pursuant to the May 2020 amendment to the Commissioner of Education’s regulations. The amended regulation provides that there will not be a reduction in State Aid for any day that school is “closed” and the 180-day requirement is waived pursuant to the Governor’s Executive Orders. The amendment also provides that missed instructional hours for these days will count towards the minimum annual instructional hours for full State Aid.
Temporary Suspension of Open Meetings Law (OML) In-Person Meeting Requirements
Executive Order 202.28 continues until June 6, 2020 the suspension of the OML requirement for public bodies (including boards of education) to provide the public with in-person access to public meetings. During this time, public bodies may continue to hold a public meeting: (1) in person, without permitting the public to attend in-person; or (2) remotely, by conference call or similar service. In either case, the public must still be able to view or listen to the meeting (by phone, internet live-stream; etc.) and the meeting must be recorded and later transcribed.
Landlords, Tenants and Mortgages
Executive Order 202.8, issued on March 20, 2020, prohibited the enforcement of an eviction of any residential or commercial tenant for 90 days. Executive Order 202.28 effectively extends this period until August 20, 2020, but with some additional nuances:
- Effective June 20, 2020, the prohibition on the enforcement of an eviction for nonpayment of rent is limited to instances where the tenant is “someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic;”
- Effective June 20, 2020, initiation of a foreclosure proceeding, or enforcement of a foreclosure of a residential or commercial mortgage, for nonpayment of the mortgage is prohibited only where the property is owned by “someone that is eligible for unemployment insurance or benefits under state or federal law or otherwise facing financial hardship due to the COVID-19 pandemic;” and
- No landlord, lessor, sub-lessor or grantor is entitled to late fees for the period from March 20, 2020 through August 20, 2020.
Executive Order 202.28 also allows all landlords and tenants or licensees of residential properties to voluntarily agree, in writing, that a security deposit (and any interest accrued thereon) will be used to pay rent. However, if a tenant or licensee requests to use the security deposit in this manner, the landlord must allow the tenant or licensee to do so if the tenant or licensee is eligible for unemployment insurance or benefits pursuant to state or federal law or is otherwise facing financial hardship due to the COVID-19 pandemic. Any security deposit used as a rent payment must be replenished by the tenant or licensee at the rate of 1/12 the amount used as rent per month, starting no sooner than 90 days from when the security deposit is used as rent.
If you have any questions regarding the implementation of the requirements of these Executive Orders please contact Sharon Berlin, Adam Ross or one of our other attorneys by calling (631) 694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2020
 It also prohibits any landlord from initiating a legal proceeding to evict a tenant.
 Alternatively, the “tenant or licensee may, at their sole option, retain insurance that provides relief for the landlord in lieu of the monthly security deposit replenishment, which the landlord, must accept such insurance as replenishment.”