April 17, 2020 Executive Orders Regarding the Continuation of NYS on “Pause” and New Face Covering Requirements
KEEPING YOU INFORMED…
New York State on “Pause” (Executive Order 202.18)
Governor Cuomo issued Executive Order 202.18, which extends the provisions of Executive Order 202.14 by requiring the restrictions on in-person businesses and workplaces to continue through and including May 15, 2020, including the requirement that non-essential businesses and not-for-profit entities continue their 100% reduced in-person workforce (see our attached April 10, 2020 memorandum regarding Executive Order 202.14 for more information). There continues to be no change to the workplace reduction rules for local governments and political subdivisions. All non-essential gatherings of any size for any reason (e.g., parties, celebrations, games, meetings or other social events) continue to be canceled or postponed through May 15, 2020.
The Order continues the closing of schools for in-person student instruction through May 15, 2020. Alternate instruction, the distribution of meals and the provision of child care must continue. Schools must also continue to use any snow or vacation days. The Order does not address the outstanding question about the timelines for rescheduling school board elections and budget votes.
Face Coverings for Certain Employees (Executive Order 202.16)
Beginning on Wednesday, April 15, 2020 at 8 p.m. and continuing until at least May 12, 2020, all essential businesses or entities must provide employees present in the workplace with “face coverings” at the business’ expense. Employees must wear the face coverings when in “direct contact” with customers or members of the public. Local governments and local law enforcement may enforce the Order pursuant to Public Health Law §§ 12 or 12-b, which subject violators to possible fines or imprisonment.
On April 14, 2020, the New York State Department of Health (“DOH”) issued interim guidance on the Executive Order 202.16 face covering requirement, which is available at: https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_eo20216employeefacecovering_041420.pdf. The DOH clarifies what is required by the Order and includes a description of “face covering.” The relevant points are as follows:
- The face covering mandate applies to state and local government agencies and authorities (which would include school districts), in addition to other “essential businesses.”
- Businesses are deemed essential by the Empire State Development Corporation (“ESD”), pursuant to the authority provided in Executive Order 202.6. The ESD website, at https://esd.ny.gov/guidance-executive-order-2026, provides a list of specific categories of businesses that have been determined essential.
- Each essential business or government body must procure, fashion, or otherwise obtain face coverings and provide those coverings to employees, as well as contractors (including independent contractors), who directly interact with the public during the course of their work. These coverings must be provided at the employer’s cost.
- Whether there is “direct interaction with the public” is determined by the employer, but at a minimum, must include instances where employees are routinely six feet or closer to members of the public.
- Face coverings can be cloth (g., homemade sewn, quick cut or bandana), surgical masks, N-95 respirators and face shields, but are not limited to these categories. More information on how to construct, use and clean cloth face coverings can be found on the Centers for Disease Control website at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/diy-cloth-face-coverings.html.
- Employees are allowed to use their own face coverings, but cannot be required to do so by their employers.
- An employee who is unable to wear a face covering and is susceptible to COVID-19 based on the Matilda’s law criteria (e., 70 or older, compromised immune system or underlying illness) should consult with the employer about reasonable accommodations (e.g., different personal protective equipment, assignment to an alternate work location or assignment).
- If an employer is unable to procure face coverings for their employees, they may consult with their local office of emergency management and submit a request for any extra supplies of face coverings that are available within that municipality.
Face Coverings for the General Public (Executive Order 202.17)
Beginning tonight at 8 p.m. and continuing until at least May 15, 2020, every individual over the age of two who is able to medically tolerate a face covering must cover their nose and mouth with a mask or cloth face covering when in a public place and unable to maintain or not maintaining a “social distance” from others. While the Order does not delineate the phrase “social distance,” Governor Cuomo stated during his April 15, 2020 press briefing that the requirement would apply to people unable to remain six feet away from others, which is consistent with his prior Executive Orders as well as the CDC’s recommendations on social distancing. The Order does not define what constitutes a sufficient “mask or cloth face covering.” However, the DOH interim guidance on what constitutes an acceptable “face covering” under Executive Order 202.16 can be referred to as a guide as to what will likely be deemed sufficient pursuant to Executive Order 202.17, absent further guidance from the DOH. Finally, during the April 15 press briefing, Governor Cuomo indicated that the State would consider penalties for violations of Order 202.17. The Order, however, does not include language regarding its enforcement or penalties for a violation.
Face Coverings While Riding in or Operating Certain Vehicles (Executive Order 202.18)
Beginning tonight at 8 p.m. and continuing until at least May 15, 2020, every individual over the age of two who is able to medically tolerate a face covering must wear a mask or face covering over their nose and mouth while utilizing public or private transportation carriers or other for-hire vehicles. Every individual operating public or private transportation carriers or other for-hire vehicles will be required to wear a face covering or mask that covers their nose and mouth while there are passengers in the vehicle. This Order also does not include language regarding its enforcement or penalties for a violation.
If you have any questions regarding the implementation of the requirements of Executive Orders 202.16, 202.17 or 202.18 or the related DOH interim guidance, please contact Alyson Mathews, Joshua Sprague 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.
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© Lamb & Barnosky, LLP 2020