Executive Orders 202.11 and 202.13

KEEPING YOU INFORMED…

We are writing to update you regarding Governor Andrew M. Cuomo’s March 27 and March 30, 2020 Executive Orders 202.11 and 202.13. This memo covers the following topics:

1. Modifications to the Definition of Essential Construction for Purposes of the In-Person Workforce Reduction Rules for Businesses and Not-for-Profit Entities
2. Pending School, State and Local Government Construction Projects
3. Temporary Suspension of Earnings Cap for Retirees Collecting a Public Pension
4. Temporary Modifications to the Rules for Opening Competitive Bids
5. Postponement of Certain Elections and School Budget Votes
6. Suspension of In-School Student Instruction and Extracurricular Activities
7. Authorization for School Districts to Pay for Child Care on Behalf of First Responders and Health Care Providers

1. Modifications to the Definition of Essential Construction for Purposes of the In-Person Workforce Reduction Rules For Businesses and Not-for-Profit Entities

Governor Cuomo has issued a series of Executive Orders ultimately requiring all non-essential businesses and not-for-profit entities in New York State (collectively, “businesses”) to reduce their in-person workforce by 100% at each workplace location, until April 15, 2020. Initially, construction was exempt from the in-person workforce reduction rules, as it was determined to be an essential service.

Effective March 28, 2020, pursuant to Executive Order 202.13, only certain construction is considered to be exempt. The Order authorizes the Empire State Development Corporation to determine, on or after March 27, 2020, which construction projects remain essential and exempt from the in-person workforce reduction rules. By the time Executive Order 202.13 had been issued, the Corporation had already updated its definition of essential construction.

The updated in-person workforce reduction Guidance provides, in sum and substance:

• All non-essential construction must shut down, except emergency construction. The guidance provides the following two examples of “emergency construction:”
• • A project necessary to protect the health and safety of the occupants.
  • The continuation of an otherwise non-emergency project if it would be unsafe to allow it to remain undone, but only until it is safe to close the site.
• Essential construction may continue. This includes roads, bridges, transit facilities, utilities, hospitals, health care facilities, affordable housing and homeless shelters.
• Every site must abide by social distancing rules, including for purposes of elevators, meals, entry and exit. Sites that cannot maintain distance and safety best practices must close.
• The State will enforce these rules, in coordination with city and local governments. Penalties include fines of up to $10,000 per violation.

2. Pending School, State and Local Government Construction Projects

The updated Guidance continues to apply to for-profit and not-for-profit businesses covered by Executive Order 202.8. Pursuant to FAQs posted on the Corporation’s website, “State and local governments including public authorities, municipal governments and school districts are not covered by Executive Order 202.8.”

According to NYS Deputy Secretary for Education Daniel Fuller, “[s]chools are allowed to continue construction projects, as government entities are exempt from essential business restrictions,” subject to the caveats set forth below. We have not received confirmation that Mr. Fuller’s comments apply to other pending State and local government construction projects. It is our opinion, though, that they serve as a useful guide for State and local governments that are struggling with supply and workforce shortages in terms of determining which projects should continue. Here are the “caveats:”

• A project is essential if it has a nexus to the health and safety of the building occupants or to 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.
• Even if a project is essential, it should be postponed until appropriate social distancing and cleaning/disinfecting protocols, if not already in place, can be implemented.
• All non-essential projects should be postponed. These projects may continue if leaving the site “as is” would result in a health and safety issue. A non-essential project should only be continued until the site is safe.

3. Temporary Suspension of Earnings Cap for Retirees Collecting a Public Pension

With certain exceptions, if retirees in a public pension system (e.g., the New York State Teachers’ Retirement System (NYSTRS), the Employees’ Retirement System (ERS), the Police and Fire Retirement System (PFRS)), who are under the age of 65, return to public employment, their pension benefits will be suspended if their earnings exceed $35,000 (as of January 1, 2020) in a calendar year.

Executive Order 202.11 excludes any income earned “during the period of emergency” from the $35,000 limitation. For these purposes, the “period of emergency” is March 27, 2020 (i.e., the date of Executive Order 202.11) through April 26, 2020.

4. Temporary Modifications to the Rules for Opening Competitive Bids

Ordinarily, when a city, town, village, school district or other public entity is required to use competitive bidding, the bids must be “publicly opened” and read at the specified time and place. Executive Order 202.11 provides that, during the period from March 27, 2020 through April 26, 2020, bids do not have to be publicly opened. “Where practical,” however, the public entity must “record or live stream bid openings so that the public has the opportunity to “view” them. Note that public entities that have policies that require bids to be opened publicly should modify them in order to take advantage of this flexibility.

5. Postponement of Certain Elections and School Budget Votes

Any school board, library or village election that is scheduled to take place in April or May 2020 will not take place as scheduled. Effective March 31, 2020, the circulation, filing and collection of nominating petitions must also be postponed. The Governor’s Office will be providing details as to the timing, location and manner of these elections in a future Executive Order.

Although the Executive Order does not reference school budget votes, the Governor’s Office has since confirmed that the postponement also includes school budget votes. Given the lack of a timeframe for budget adoption and that State aid to schools has not yet been finalized, we recommend that school districts consider holding off on adopting 2020-2021 budgets until the Governor’s Office has provided further direction.

6. Suspension of In-School Student Instruction and Extracurricular Activities

Governor Cuomo’s Executive Order 202.4 directs all New York State schools to “close” by March 18, 2020 and remain closed until April 1, 2020. The Order requires schools to provide alternative instruction, distribute and make available meals, and provide child care (with a particular emphasis on serving children of parents in the health care profession or that are first responders).

Executive Order 202.11 extends the period that schools will remain “closed” until April 15, 2020. According to the Order, at that time, the State will again reassess whether to further extend the mandatory “closure.” The Order further provides that, during this time, school districts must continue to implement their “plans for alternative instructional options, distribution and availability of meals, and child care, with an emphasis on serving children of essential workers, and continue to first use any vacation or snow days remaining.”

On March 30, 2020, the State Education Department issued a “Clarification on 180-day Requirements in Light of Executive Orders” (“the Clarification Memo”), which explains that any day that a district was previously scheduled to be opened, but now is closed, during the period of April 1, 2020 through April 14, 2020 will satisfy the requirements for a waiver of the 180-day requirement, “provided that the district has exhausted and/or will exhaust any available time, including snow days and vacation days.”

The Clarification Memo further elaborates on this requirement to use snow and vacation days:

Districts must continue to provide remote instruction for students, meals for students, and child care for essential workers every weekday between April 1, 2020 and April 14, 2020, even if the district is scheduled to be on spring break during that time.

For districts that have continuously been providing instruction for students, meals for students, and child care for essential workers since schools closed for in-person instruction, this requirement effectively increases the number of workdays for their educators and some other staff members. Districts may have collective bargaining agreements, or past practices pursuant to the Taylor Law, that mandate that bargaining unit members have a spring break recess or that they not exceed a certain number of workdays per school year. There are also practical implications to educators and students working in this environment without a break. Nonetheless, we recommend that school districts comply with the Clarification Memo, so as not to risk losing State aid, and contact us immediately for assistance in dealing with the resultant labor issues.

7. Authorization for School Districts to Pay for Child Care on Behalf of First Responders and Health Care Providers

Executive Order 202.13 authorizes school districts to pay for the cost of the child care services the districts are required to provide pursuant to Executive Order 202.4 to children of parents in the health care profession and first responders who are critical to the COVID-19 response effort.

Please contact Alyson Mathews, Mara Harvey, Adam Ross or one of our other attorneys by calling (631) 694-2300 or emailing am@lambbarnosky.com, mnh@lambbarnosky.com or asr@lambbarnosky.com if you have any questions regarding the implementation of the provisions of Executive Orders 202.11 and 202.13 set forth in this memo.

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