March 19, 2020 Executive Order 202.6: Telecommuting and In-Person Workforce Reductions
KEEPING YOU INFORMED…
Last night, Governor Cuomo issued Executive Order 202.6 requiring all businesses and not-for-profit entities in New York State (collectively, “businesses”), to the maximum extent possible, and by March 20 at 8 p.m., to use telecommuting or work from home procedures that can safely be utilized. The Order further requires that, by March 20 at 8 p.m., businesses, other than those defined in the Order as “essential,” reduce their in-person workforce by 50% at each work location. A copy of the Order is available here: https://www.governor.ny.gov/news/no-2026-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.[1] This morning, the Governor announced during a press conference and on Twitter, “NEW: Today we are mandating that 75% of the non-essential workforce MUST work from home.” A written Executive Order to this effect has not yet been issued.
“Essential” businesses providing essential services or functions are excluded from these requirements. These businesses are identified in the Order and may continue to operate as normal, although they may voluntarily comply with the Governor’s Order. The Order includes the following as essential:
- essential health care operations, including research and laboratory services;
- essential infrastructure, including utilities, telecommunication, airports and transportation infrastructure;
- essential manufacturing, including food processing and pharmaceuticals;
- essential retail, including grocery stores and pharmacies;
- essential services, including trash collection, mail and shipping services;
- news media;
- banks and related financial institutions;
- providers of basic necessities to economically disadvantaged populations;
- construction;
- vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; and
- 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.
Any other business may request an opinion from the Empire State Development Corporation that it be deemed an “essential” business. The Corporation will grant the request if “it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond to [the COVID-19 pandemic].” By tonight at 5 p.m., the Corporation will issue guidance regarding which businesses are determined to be essential.
Until that guidance is issued, we recommend that all businesses currently covered by the Order review their workforce by work location and determine which employees may be assigned to telecommute or work from home. Businesses have the option of assigning employees to work from home for the duration of the Order or alternating which employees report to work. The Order does not require employers to maintain their workforce “as is” or to pay employees who are not performing work while at home. That said, issues regarding work location, work schedule and compensation may be restricted by an employment agreement, union contract or policy. We recommend that employers implement telecommuting policies addressing issues, including work from home procedures; use of technology, including computer virus protection requirements; hours of work, breaks and permission to work overtime.
Please contact Alyson Mathews or one of our other labor and employment attorneys by calling (631) 694-2300 if you have any questions regarding the implementation of Executive Order 202.6 or need assistance with submitting a request for an opinion from the Corporation or with drafting a telecommuting policy.
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] This Executive Order does not apply to public employers, whose workforces were previously addressed in Executive Order 202.4.