On March 20, 2020, Governor Cuomo announced the “New York State on PAUSE” Executive Order. The final signed Executive Order is not yet available to the public, but according to the Governor, under the Executive Order all non-essential businesses and non-profit entities statewide must stop all in-office work starting Sunday, March 22, 2020 at 8:00 p.m. Thus, many employers want to know whether their services are essential and exempt from the Executive Order.
The Governor previously issued Executive Order 202.6 which identified a list of essential businesses and directed that the Empire State Development Corporation (“ESDC”) provide further guidance on the issue. ESDC issued its guidance the evening of March 19, 2020, stating that essential businesses and entities include:
(1) Essential Healthcare Operations including hospitals, walk-in care facilities, research and laboratory services, veterinary/animal services, elder care, medical wholesale/distribution, medical supplies/equipment providers, home health care workers/aides, doctors’ offices, dentists’ offices for providing emergency care, nursing homes, and residential health care facilities or congregate care facilities.
(2) Essential Infrastructure Operations including airports/airlines, telecommunication/data centers, public water and wastewater, transportation infrastructure (e.g., bus, rail, or for-hire vehicles and garages), and utilities including power generation, fuel supply and transmission.
(3) Essential Manufacturing of food and beverage, pharmaceuticals, chemicals, medical equipment/instruments, safety/sanitary products, telecommunications, microelectronics/semi-conductors, agriculture/farms and paper products.
(4) Essential Retail including grocery/food/beverage stores, pharmacies, convenience stores, farmers markets, gas stations, restaurants/bars (but only for take-out/delivery) and hardware/building material stores.
(5) Essential Services including trash/recycling collection and disposal, mail/shipping services, laundromats/dry cleaning, building cleaning/maintenance, childcare services, auto repair, warehouse/distribution and fulfillment, funeral homes/crematoriums/cemeteries, storage for essential businesses and animal shelters/care/management.
(6) News Media.
(7) Financial Institutions including banks, insurance, payroll and accounting services.
(8) Providers of Basic Necessities to Economically Disadvantaged Populations including homeless shelters/congregate care facilities, food banks, services related to the direct care of patients in state-licensed or funded voluntary programs, the care, protection, custody and oversight of individuals in the community and in state-licensed residential facilities, operating community shelters and other critical human service agencies providing direct care or support.
(9) Construction including skilled trades such as electricians and plumbers and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.
(10) Defense and national security-related operations supporting the U.S. Government or a contractor to the U.S. Government.
(11) Essential Services Necessary to Maintain the Safety, Sanitation and Essential
Operations of Residences or Other Essential Businesses including law enforcement, fire prevention/response, building code enforcement, security, emergency management/response, building cleaners/janitors, general maintenance whether employed by the entity or directly as a vendor, automotive repair, disinfection and doormen.
(12) Vendors that Provide Essential Services or Products including logistics and technology support, childcare and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including services related to government owned or leased buildings.
ESDC also states that any business that only has a single occupant/employee, such as a gas station, is exempt from the Executive Order. Exempt businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health. Any business or entity that is not covered by these exemptions, but believes it should be deemed essential may request an exemption from the ESDC online at: https://esd.ny.gov/guidance-executive-order-2026.
The most recent Executive Order does not impact public sector employers. Public sector employers remain subject to Executive Order 202.4 which requires that as of March 17, 2020, all local governments and political subdivisions allow non-essential personnel as determined by the local government, to be able to work from home, or take leave without charging accruals, except for those personnel essential to the locality’s response to the COVID-19 emergency. Such non-essential personnel shall total no less than 50% of the total number of employees across the entire workforce of such local government or political subdivision.
Employers who ignore the Executive Order may face serious consequences. Under New York Executive Law § 24(5), anyone who knowingly violates the Executive Order is guilty of a Class B misdemeanor, which is punishable by up to three months imprisonment or one-year probation and a fine of up to $500 or double the amount of gain from the violation. Further, Governor Cuomo stated during his press conference that employers who do not comply with the above in-person workforce restrictions will be subject to civil penalties and/or mandatory business closures.
Our attorneys remain available at any time via telephone or email during this difficult time to answer questions for clients.