June 03, 2020 Executive Orders 202.34 through 202.36 (Face Covering Requirement and Re-Openings)
KEEPING YOU INFORMED…
This memo provides a summary of Executive Orders 202.34 through 202.36, which the Governor recently issued as part of the State’s transition from New York “On Pause” to New York Forward.
Enforcement of Face-Covering Requirement
Through June 27, 2020, business operators and building owners may deny an individual entry into, or can compel an individual to leave, a place of business or building if the individual fails to comply with Executive Order 202.17’s requirement to cover his/her nose and mouth with a mask or cloth face-covering in a public place when not maintaining social distance (this face-covering requirement does not apply to children under the age of two or to individuals who cannot medically tolerate a face-covering). State and local enforcement authorities may impose fines or other penalties for violations.
Executive Order 202.34 requires that the face-covering requirement be applied in a manner that is consistent with all applicable laws, including the American with Disabilities Act and the New York State and City Human Rights Laws. For example, an individual may not be discriminated against based on disability. The Order, though, insulates business operators and building owners from certain contract claims if, for example, the tenant or lessee of the property can no longer use the property in the manner intended by the lease as a result of the operator or owner’s enforcement of the face-covering requirement.
NY Forward: Phase One Re-Openings
“Re-opening” refers to non-essential businesses and business activities. Essential businesses and business activities that are open will remain open.
Phase One Regions may re-open:
- Agriculture, Forestry, Fishing and Hunting;
- Retail (Limited to curbside or in-store pickup or drop off);
- Manufacturing; and
- Wholesale Trade.
These Regions may also allow outdoor, low-risk recreational activities, in accordance with Department of Health guidance, as determined by the Empire State Development Corporation.
NY Forward: Phase Two Re-Openings
As of June 3, 2020, all Regions of the State, except New York City, are in Phase One or Phase Two of re-opening. Phase Two Regions may re-open:
- Professional Services, Administrative Support and Information Technology;
- Real Estate Services, Building and Property Management, Leasing, Rental and Sales Services;
- Retail In-Store Shopping, Rental, Repair and Cleaning;
- Barbershops and Hair Salons (limited services); and
- Motor Vehicle Leasing, Rental and Sales.
The Executive Order requiring local governments and political subdivisions, including school districts, to allow 50% of their non-essential employees to work from home or take leave without charging accruals is extended through at least June 28, 2020.
The State has published industry-specific guidelines, which are available at: https://forward.ny.gov/ny-forward. The guidelines apply to non-essential businesses in Regions that are permitted to re-open and essential businesses that were previously permitted to remain open. The guidelines include both mandatory and recommended best practices for re-opening. For example, the guidelines for office-based work in a Phase Two Region requires limiting the total number of occupants to no more than 50% of the maximum occupancy for a particular area; maintaining at least six feet between all individuals at all times (unless the safety of the activity requires a shorter distance); and requiring face coverings whenever workers or visitors come within six feet of another person.
If there are guidelines specific to your industry, then the owner or agent of your business/entity must electronically submit an affirmation confirming that the owner or agent has read and understands his/her obligation to operate in accordance with the guidelines. If your industry is not included in the guidelines but your businesses/entity has been operating as essential, the State’s website provides that you should refer to the Empire State Development’s Essential Business Guidance (available at https://esd.ny.gov/guidance-executive-order-2026) and adhere to the guidelines within the Template Safety Plan (discussed below). You should also regularly check the New York Forward website in the event that guidelines applicable to your business are posted.
All businesses, including essential businesses, must develop a Safety Plan outlining how the spread of COVID-19 will be prevented and how the business intends to comply with the applicable industry guidelines. A business may complete the State’s template Plan (available at https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/NYS_BusinessReopeningSafetyPlanTemplate.pdf) or may develop its own Plan. The Plan does not need to be submitted to a State agency for approval, but must be retained on the business’ premises and be available for inspection by the State Department of Health or local health or safety authorities.
The State has developed a Frequently Asked Questions page regarding the phased re-openings, which is available at https://esd.ny.gov/nyforward-faq.
If you have any questions regarding the implementation of these Executive Orders, please contact Lauren Schnitzer at firstname.lastname@example.org 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
 Business operators and building owners are insulated from contract claims of: (a) a violation of the “covenant of quiet enjoyment” (which is generally defined as a tenant or lessee’s right to the undisturbed lawful use and enjoyment of real property); and (b) “frustration of purpose” (which relates to unexpected changes in circumstances).