April 10, 2020 Executive Order 202.14: 100% In-Person Workforce Reductions Continued; Additional Guidance on Essential and Non-Essential Businesses, Including Local Government Construction
KEEPING YOU INFORMED…
Governor Cuomo issued Executive Order 202.14 extending the rules requiring non-essential businesses and not-for-profit entities (collectively, “businesses”) to continue their 100% reduced in-person workforce. The rules now remain in effect through April 29, 2020. Schools will also remain closed for student instruction through that date. There continues to be no change to the workplace reduction rules for local governments and political subdivisions.
Essential businesses or entities providing essential services or functions, regardless of whether provided to an essential or non-essential business, are not subject to the 100% workforce reduction rules. Instead, they may operate at a level necessary to provide the essential service or function. The Empire State Development Corporation has continued to periodically update its Guidance on which businesses are essential. The most recent Guidance, updated as of April 9, 2020 at 8:00 a.m., includes several changes that are listed below. The changes track the categories of essential businesses set forth in the Guidance.[1]
- Essential health care operations has been expanded to now include:
- Emergency chiropractic services;
- Physical therapy, prescribed by a medical professional; and
- Occupational therapy, prescribed by a medical professional.
- Essential infrastructure (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Essential manufacturing has been expanded to now include:
- Automobiles; and
- Any parts or components necessary for essential products that are referenced in the Guidance.
- Essential retail has been expanded to now include:
- Telecommunications to service existing customers and accounts; and
- 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.
- Essential services has been expanded to now include:
- Marine vessel repair and marines, but only to support government or essential commercial operations and not for recreational purposes;
- Dog walking;
- Animal boarding;
- Landscaping, but only for maintenance or pest control and not cosmetic purposes;
- Designing, printing, publishing and signage companies to the extent that they support essential businesses or services; and
- 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.
- News media (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Financial institutions
- The subcategory “services related to financial matters” has been narrowed to exclude services related to debt collection.
- Providers of basic necessities to economically disadvantaged populations (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Construction. This category has been revised to provide as follows:
- All non-essential construction must safely shut down, except emergency construction (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:
- the construction is for, or the business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
- the construction is for affordable housing, which is 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 14 in the FAQ at: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;
- the construction is for existing (e., currently underway) projects of an essential business; or
- the construction work is being completed by a single worker who is the sole employee/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 and exits. Sites must close if appropriate social distancing and cleaning/disinfecting protocols cannot be maintained. Enforcement will be conducted by state and local governments, including fines of up to $10,000 per violation.
- Construction may continue solely with respect to those employees who 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.
- 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. To the greatest extent possible, however, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/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.
- Defense (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Essential services necessary to maintain the safety, sanitation and essential operations of residences and other businesses (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Vendors that provide essential services or products, including logistics and technology support, child care and services (no changes since the Guidance’s March 27, 2020, 11:00 a.m. update)
- Recreation. This category is new.
- Parks and other open public spaces are essential, except playgrounds and other areas of congregation where social distancing cannot be abided.
- Golf courses are not essential.
- Use of boat launches and marinas for recreational vessels is not essential.
- Professional services with extensive restrictions. This category is also new.
- Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence must 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 must 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/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (e., not clients).
In addition, the Guidance reiterates that, pursuant to Executive Order 202.10, all non-essential gatherings of any size for any reason are canceled or postponed. The Guidance now includes a provision on houses of worship and congregate services that provides as follows:
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.
Businesses that are not designated as essential continue to be allowed to submit requests to the Empire State Development Corporation to be so designated. The following non-essential businesses are now restricted from requesting this designation (most of these businesses were directed to close by other Executive Orders):
- 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 center, or exercise class, except the remote or streaming service noted in the last bullet point of category #5, Essential Services 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 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; and
- Any barbershops, hair salons, tattoo or piercing parlors and related personal care services, including nail technicians, cosmetologists and estheticians, and the provision of electrolysis and laser hair removal services.
A complete copy of the Guidance is available at: https://esd.ny.gov/guidance-executive-order-2026.
Please contact Alyson Mathews or one of our other attorneys by calling (631) 694-2300 if you have any questions regarding the implementation of Executive Order 202.14 or need assistance with submitting a request to be designated as an essential business.
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
[1] Most of what appears in this list is directly quoted from the Guidance.