Executive Orders 202.38 and 202.39 (Local Government Staffing, APPR, Tenure Determinations and NY Forward

Executive Orders 202.38 and 202.39 (Local Government Staffing, APPR, Tenure Determinations and NY Forward



Consistent with our ongoing commitment to continue to keep you apprised of the Governor’s latest executive orders, this memo provides a summary of Executive Orders 202.38 and 202.39, which were recently issued and are the next steps for “opening of the valve” in NY Forward. These Orders cover the following topics: NYS on PAUSE; APPR; tenure determinations; retail store temperature checks for the public; outdoor food and beverage service for restaurants and bars; and an increase to the cap on the number of people permitted to engage in non-essential gatherings in houses of worship.

Public Sector Takeaways:

The End of Executive Order 202.4’s Restrictions on Local Governments

Executive Order 202.39 addresses the pending end of NYS on PAUSE providing, in relevant part:

The directive contained in Executive Order 202.4, as extended, that required local governments to allow non-essential personnel to be able to work from home or take leave without charging accruals, and required such number of non-essential personnel to total no less than 50% of the total number of employees across the entire workforce of such local government or political subdivision, is hereby modified to apply only to local governments that have not met the prescribed public health and safety metrics to be eligible for Phase Two reopening, provided such local governments in Phase Two regions may bring non-essential employees back to work beginning two weeks after such region meets the metrics to reopen Phase Two.

This is, to put it mildly, hardly a model of drafting clarity. Interpreted literally, the Order provides that the requirements of NYS on Pause contained in Executive Order 202.4 (i.e., the 50% non-essential in-person workforce restrictions and the requirement that employees who are non-essential and not working be permitted to stay home without charge to their accruals) will no longer apply to local governments meeting the health and safety metrics[1] for reopening in Phase Two. The Order further provides that, effective two weeks after the local government has been in Phase Two, it may bring back 100% of its employees. This means that local governments would be permitted to stop paying their non-essential, non-working employees during the time period between becoming eligible for Phase Two reopening and the date on which the local government has been in Phase Two for two weeks. For those that do not meet the Phase Two health and safety metrics criteria, the NYS on PAUSE Order (202.4) has again been extended until July 7, 2020.

Given the significant labor relations implications of this literal interpretation, as well as its inconsistency with everything else that the Governor has said and done regarding this issue over the past several months, though, we believe that the Governor’s intent may have instead been to continue to require the payment obligations described in 202.4 until 100% of the workforce may be (not necessarily is) brought back. With that said, we are attempting to get clarification from official sources about the Governor’s intent, and are awaiting further guidance from the State. In the meantime, we recommend that you contact us if you are planning to cease payments to employees prior to when they may be brought back to work, so that we can together address any potential bargaining obligations and related legal and practical issues.


Executive Order 202.39 “exempts” school districts[2] from the State law and regulations governing the Annual Professional Performance Review (“APPR”) of classroom teachers and building principals. For the 2019-2020 school year only, districts will not be required to comply with the normal legal requirements for evaluating these employees and will not lose any State funding if they do not. This means that this year, among other things, school districts are not legally mandated to: (1) use the “highly effective,” “effective,” “developing” or “ineffective” rating scale; (2) conduct a minimum number of observations/school visits; (3) use a State-approved teacher or principal practice rubric; (4) use student learning objectives (SLOs) to measure student performance; (5) conduct observations by an “independent” evaluator; or (6) use a “matrix” to determine a teacher or principal’s final rating.

The Executive Order does not, however, exempt school districts from complying with the provisions of a collective bargaining agreement concerning evaluations, even if those provisions merely incorporate the State law and regulations. Districts should carefully review the applicable CBAs and, where appropriate, consider negotiating modifications of the evaluation procedures with their teachers’ and administrators’ unions for the 2019-2020 school year.

Likewise, the Executive Order does not modify State regulations or contract provisions governing the evaluation of anyone other than classroom teachers and building principals.

Tenure Determinations

Executive Order 202.39 also alters the requirements for a classroom teacher or building principal to be granted tenure. Normally, in order to be eligible to be granted tenure, these employees must meet three criteria: (1) they must have been recommended for tenure by the Superintendent; (2) they must have been rated “effective” or “highly effective” in at least three of the four preceding years; and (3) they must not have been rated “ineffective” in the final year of their probation. The Executive Order eliminates the third requirement for classroom teachers and building principals for whom 2019-2020 is their last year of probation; i.e., they will be eligible for tenure if they are recommended by the Superintendent and have been rated “effective” or “highly effective” in at least three of the last four years, even though they did not receive an APPR rating in 2019-2020.

The Executive Order requires the “specific agreement” of the Board to grant tenure to  those educators “who would have been, [in the Board’s] discretion, qualified for appointment on tenure based upon past performance, notwithstanding that their annual professional performance review [has] not been completed and they [have] not received the necessary effectiveness rating for the 2019-20 school year.” We interpret this to mean that the resolution granting tenure must include this specific finding by the Board.

Finally, where the Board does not believe that a grant of tenure is warranted, it may extend the classroom teacher or building principal’s probationary period for another school year until an APPR rating is received. We recommend that school districts wishing to extend an educator’s probationary period obtain a signed agreement from the employee to do so.

Private Sector Takeaways:

Executive Order 202.38 provides that, effective through July 6, 2020:

      • Retail stores may require individuals to undergo temperature checks prior to being allowed admittance to the building, and may deny entry to anyone who refuses to undergo a temperature check as well as any individual who does undergo a temperature check but whose temperature is above the limit set by the NY Department of Health’s guidelines (currently 100.4 degrees Fahrenheit). This requirement must be applied consistent with the Americans with Disabilities Act and the New York State (and, where applicable, New York City) Human Rights Laws, meaning that certain accommodations may need to be made for some individuals.
      • Restaurants and bars may serve food and beverages on their premises, as long as it is done in outdoor spaces and the restaurant/bar operates in compliance with the Department of Health’s guidance for outdoor service. Executive Order 202.39 clarifies that these activities are limited to those restaurants/bars that are in a Phase Two region (and has extended the ability to do so by an extra day – until July 7, 2020). In addition, to facilitate social distancing for the outdoor food and beverage service, restaurants and bars will be permitted to expand their premises licensed by the State Liquor Authority so that they can also use for service purposes contiguous public spaces (g., sidewalks or closed streets) or the restaurant/bar’s other unlicensed private spaces (subject to: certain reasonable limitations and procedures set by the State Liquor Authority’s Chairman; reasonable approval by the local municipality of the use of the public space; and any Department of Health guidance).
      • Non-essential gatherings in houses of worship are now capped at 25% of the location’s indoor capacity limit for those houses of worship that are located in Phase Two regions, as long as they abide by the Department of Health’s social distancing and cleaning and disinfection protocols.

If you have any questions regarding the implementation of these Executive Orders, please contact Alyssa Zuckerman at alz@lambbarnosky.com, Adam Ross at asr@lambbarnosky.com or one of our other attorneys by calling (631) 694-2300.


© Lamb & Barnosky, LLP 2020

[1] We interpret “health and safety metrics” to mean those set by the COVID-19 Regional Metrics Dashboard: https://forward.ny.gov/covid-19-regional-metrics-dashboard.

[2] While the Executive Order uses the term “school districts,” it is likely that it was the Governor’s intent to include BOCES as well.