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New York State Executive Order 202.8 Shuts Down Many Businesses

Executive Order 202.8
Effective Sunday, March 22, 2020 at 8:00 PM, New York State’s Executive Order 202.8 shut down many New York businesses in order to combat the spread of COVID-19.  The State also issued guidance on who is exempted from the law.  Here is what we know. 

As of 8:00 pm, Sunday March 22, 2020 through April 19, 2020:

  1. All businesses and not-for-profit entities need to utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely use.
  2. Each employer shall reduce the in-person workforce at any of its work locations by 100%.
  3. Any “essential” business or entity providing essential services or functions shall not be subject to the in-person restrictions. Any business violating the above shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law (click here to be linked to section 12 of the New York State PHL).

For employers’ reference, the New York State Department of Economic Development has issued guidance on what exactly is considered essential services.   It has broken these services down into twelve (12) broad categories, as follows:

1.  Health care operations including research and laboratory services, hospitals, walk-in care health facilities, veterinary and animal health services, elder care, medical wholesale and distribution, home health care workers or aides, doctor and dentist offices, nursing homes, or residential health care facilities or congregate care facilities and medical supplies and equipment providers.
2.  Essential infrastructure including utilities like power generation, fuel supply and transmission; public water and wastewater; telecommunications and data centers; airports/airlines; transportation infrastructure such as bus, rail or for-hire vehicles and garages.
3.  Essential manufacturing including food processing, including all foods and beverages, chemicals, medical equipment/instruments, pharmaceuticals, safety and sanitary products, telecommunications, microelectronics/semi-conductor, agriculture/farms, paper products.
4.  Essential retail including grocery stores, all food and beverage stores, pharmacies, convenience stores, farmer’s markets, gas stations, restaurants/bars (only for takeout/delivery), hardware and building material stores.
5.  Essential services including trash and recycling collection, processing and disposal, mail and shipping services, laundromats/dry cleaning, building cleaning and maintenance, child care services, auto repair, warehouse/distribution and fulfillment, funeral homes, crematoriums and cemeteries, storage for essential businesses, animal shelters or animal care/ management.
6.  News media.
7.  Financial Institutions including banks, insurance, payroll and accounting.
8.  Providers of basic necessities to economically disadvantaged populations including homeless shelters and congregate care facilities, food banks, human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support.
9.  Construction including skilled trades such as electricians, plumbers, 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 and response, building code enforcement, security, emergency management and response, building cleaners or janitors, general maintenance whether employed by the entity directly or a vendor, automotive repair, disinfection and doormen.
12.  Vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public including logistics, technology support, child care programs and services, government owned or leased buildings and essential government services.
Despite the length of this list, many employers are asking if they are covered.   In many cases we need to make an educated guess, but there is an alternative.  New York State has created a service which allows employers to ask the State for guidance on the essential nature of their business.  Beyond guidance, the State has already determined single person businesses are deemed essential and do not need to abide by this closure order.   Over time, we will have more guidance on the definition of “essential.” 
If you need help deciphering the definition of essential, need assistance in asking the State for guidance, or any other employment related issues pertaining to COVID-19, we stand ready to help. 

The subject matter discussed in this post can be very technical.  It is an evolving area of law and very fact specific.  Our goal here is to simply alert you to some of the key issues involved.  We urge you to seek competent legal counsel before applying these ideas to your specific situation.  Brody and Associates stands ready to discuss your particular needs.