N.Y. Governor Cuomo Announces Statewide Mandate that Employees of Non-Essential Businesses Cannot Report In Person to the Workplace, and that Individuals Remain Indoors to the Greatest Extent Possible

July 1, 2020
July 1, 2020 Update.  New York Governor Cuomo has issued new executive orders regarding the permissible size of non-essential gatherings in certain regions, while New York State has issued updated guidance on such gatherings.  Specifically, New York Governor Cuomo issued an executive order on June 15, 2020 permitting non-essential gatherings of twenty-five or fewer individuals in regions that have reached Phase Three of the New York reopening plan, and an executive order on June 26, 2020 permitting non-essential gatherings of fifty or fewer individuals under certain conditions in regions that have reached Phase Four of the New York reopening plan. Finally, on June 29, 2020 New York updated its guidance regarding, among other things, prohibited non-essential gatherings. These new orders and guidance have been incorporated into the post below.

May 26, 2020 Update.  On May 22, 2020, New York Governor Cuomo signed an Executive Order permitting non-essential gatherings of ten or fewer individuals for any lawful purpose, provided that social distancing protocols are adhered to.  On May 25, 2020, New York updated its guidance regarding prohibited non-essential gatherings, and clarified that the May 22 Executive Order does not permit businesses not otherwise authorized to operate to reopen.  This guidance has been incorporated into the below post.

May 22, 2020 Update.  On May 21, 2020, New York Governor Cuomo signed an Executive Order permitting certain small religious gatherings and Memorial Day observances, provided that social distancing protocols are adhered to.  New York updated its guidance regarding prohibited non-essential gatherings accordingly, and that guidance has been incorporated into the below post.

May 18, 2020 Update.  On May 16, 2020, New York updated its guidance regarding which businesses are essential for purposes of having employees report in person to the workplace.  The updated guidance provides additional details for both essential and non-essential businesses, and has been incorporated into the below post.

May 15, 2020 Update.  On May 14, 2020, New York Governor Andrew Cuomo signed an Executive Order extending New York on PAUSE through May 28, 2020.  This Executive Order also sets forth the parameters by which certain regions of New York State may begin to open as of 12:01 a.m. on May 15, 2020.  Our post, N.Y. Governor Cuomo Permits Certain Regions of New York State to Reopen While Others Remain on PAUSE explains this Executive Order in further detail.

April 16, 2020 Update.  On April 16, 2020, New York Governor Andrew Cuomo announced an extension of the New York State on PAUSE executive order, including the prohibition on non-essential businesses having employees report in person to the workplace, for an additional two weeks through May 15, 2020.

April 13, 2020 Update.  On April 12, 2020, New York Governor Cuomo signed an Executive Order requiring all essential businesses or entities to provide, at their expense, face coverings to employees in direct contact with customers or members of the public.  This requirement is effective as of Wednesday, April 15 at 8 p.m.  Local governments and local law enforcement may enforce this requirement, and non-compliance could result in fines or imprisonment.

April 10, 2020 Update.  On April 9, 2020, New York updated its guidance as to which businesses are essential for purposes of having employees report in person to the workplace.  The updated guidance provides additional details for both essential and non-essential businesses.  Regarding non-essential businesses, the guidance specifically enumerates certain businesses as “non-essential” and “therefore, unable to request a designation” from the State that they are essential.  This list includes large gathering or event venues, dine-in restaurants (excluding take-out or delivery options), gyms and fitness centers, movie theaters, shopping malls and other places of public amusement. 

Regarding essential businesses, the guidance provides updated examples of essential services in various categories; specifically excludes debt collection as an essential business; contains additional guidance regarding construction; and includes information for professional services, including lawyers and real estate services.  This new guidance has been incorporated into this updated post.

April 7, 2020 Update.  On April 6, 2020, New York Governor Andrew Cuomo announced an extension of the New York State on PAUSE executive order, including the prohibition on non-essential businesses having employees report in person to the workplace, for an additional two weeks through April 29, 2020. 

March 20, 2020 Update.  On the afternoon of March 20, 2020, New York State issued updated guidance on what constitutes “essential services” under PAUSE.  The updated guidance further restricts services previously deemed “essential,” and adds certain additional services to the list, such as services related to financial markets and hotels.  This new guidance has been incorporated to this updated post.
 
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On the morning of March 20, 2020, N.Y. Governor Cuomo announced that he will sign an Executive Order entitled New York State on PAUSE (Policies that Assure Uniform Safety for Everyone) (“PAUSE”).  This Executive Order consists of two rules:  (1) non-essential businesses statewide must not have their employees report to the workplace; and (2) individuals must remain indoors to the greatest extent possible.  PAUSE modifies Governor Cuomo’s previous Executive Orders of March 18 and March 19 (the “Previous Executive Orders”) mandating that employers could have no more than 50% and 25% of employees, respectively, report in person to the workplace.  Businesses that are performing “essential services or functions” are exempt. 

Non-Essential Businesses:  No Employees Can Report In Person

In accordance with the first rule of PAUSE, effective March 22 at 8 p.m., employers that do not fall into the “essential” function exemption may not allow their workers to report in person.  The Previous Executive Orders mandated that “all businesses and not-for-profit entities in New York State shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.”  Governor Cuomo explained that the repercussions for non-compliance with this order will be mandatory business closure and civil fines. 

Governor Cuomo has extended this Executive Order multiple times since its signing.  As of May 15, 2020 New York State on PAUSE remains in effect until May 28, 2020.

The New York State Department of Economic Development (d/b/a Empire State Development Corporation (“ESDC”)) updated its guidance designating certain businesses as non-essential, such that these business may not request an opinion from ESDC deeming them essential. As of July 1, 2020, these non-essential businesses include:
  • Any large gathering or event venues, including but not limited to establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience;
     
  • Any facility authorized to conduct video lottery gaming or casino gaming;
     
  • Any gym, fitness centers, or exercise classes, except the remote or streaming service noted below;
     
  • Any movie theater, except drive-ins;
     
  • Any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease; and
     
  • All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, and family and children’s attractions.
All non-essential gatherings of individuals of any size for any reason, including parties, celebrations, or other social events, are limited to no more than twenty-five or fewer people in regions that have reached Phase Three of reopening, and no more than fifty people in regions that have reached Phase Four of reopening, so long as appropriate social distancing and face covering requirements are followed. For regions that have not entered Phase Three of reopening, non-essential gatherings cannot exceed ten people, and social distancing and face covering requirements must be adhered to.

“Essential Services or Functions” Exemption

This mandate does not apply to businesses or entities providing “essential services or functions.”  In the March 19 Executive Order, essential functions were defined as  “essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; 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.” 

The March 19 Executive Order required that the ESDC issue further guidance as to which businesses are determined to be essential.  Businesses that are not covered under the ESDC’s guidance may request an opinion from ESDC deeming them essential.  In reviewing such a request, ESDC will determine whether it is “in the best interest of the state to have the workforce continue at full capacity in order to properly respond to this disaster.” ESDC’s guidance, as updated through July 1, 2020, provides that for businesses or entities that “operate or provide both essential and non-essential services, supplies or support, only those lines and/or operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.”  The guidance also clarifies that “essential business” shall mean businesses operating in or as:
  • Essential health care operations, including:  research and laboratory services; hospitals; walk-in-care health clinics and facilities; veterinary and livestock medical services; senior/elder care; medical wholesale and distribution; home health care workers or aides for the elderly; doctors and doctors’ offices; dentists and dental practices; nursing homes, residential health care facilities, or congregate care facilities; medical supplies and equipment manufacturers and providers; licensed mental health providers; licensed substance abuse treatment providers; medical billing support personnel; speech pathologists and speech therapy; chiropractic services; acupuncture; physical therapy; and occupational therapy.
     
  • Essential infrastructure, including:  public and private utilities including but not limited to power generation, fuel supply, and transmission; public water and wastewater; telecommunications and data centers; airports/airlines; commercial shipping vessels/ports and seaports; transportation infrastructure, such as bus, rail, for-hire vehicles, and garages; and hotels and other places of accommodation, including campgrounds. 
     
  • Essential manufacturing, including:  food processing, manufacturing agents, including all foods and beverages; chemicals; medical equipment/instruments; pharmaceuticals; sanitary products; telecommunications; microelectronics/semi-conductors; food-producing agriculture/farms; household paper products; defense industry and the transportation infrastructure; automobiles; and any parts or components necessary for essential products that are referenced within this guidance.
     
  • Essential retail, including:  grocery stores, including all food and beverage stores; pharmacies; convenience stores; farmer’s markets; gas stations; restaurants/bars (but only for take-out/delivery); hardware, appliance, and building material stores; pet food; and telecommunications to service existing customers and accounts.
     
  • Essential services, including:  trash and recycling collection, processing, and disposal; mail and shipping services; laundromats and other clothing/fabric cleaning services; building cleaning and maintenance; child care services; bicycle repair; auto repair and maintenance; automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only; warehouse/distribution and fulfillment; funeral homes, crematoriums and cemeteries; storage for essential businesses; maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein; animal shelters and animal care, including dog walking, animal boarding and pet grooming, but only to the extent necessary to ensure animal health; landscaping, gardening and horticulture; designing, printing, publishing and signage companies, to the extent that they support essential businesses or services; and remote instruction or streaming of classes from public or private schools or health/fitness centers, provided, however, that no in-person congregate classes are permitted.
     
  • News Media.
     
  • Financial Institutions, including:  banks or lending institutions; insurance; payroll; accounting; and services related to financial markets, except debt collection.
     
  • 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; and those operating community shelters and other critical human services agencies providing direct care or support.
     
  • Construction.
     
    • Essential construction may proceed if:
       
      • The construction is for, or the business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
         
      • The construction is for affordable housing, as defined as construction work where either (1) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (2) where the project is being undertaken by, or on behalf of, a public housing authority;
         
      • The construction is necessary to protect the health and safety of occupants of a structure;
         
      • The construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
         
      • The construction is for existing (i.e., currently underway) projects of an essential business; or
         
      • The construction work is being completed by a single worker who is the sole employee/worker on the job site.
         
    • All construction sites are required to ensure that personnel maintain social distancing procedures.  If a site cannot maintain social distancing procedures, including cleaning and disinfecting, it must close.  Violators may be subject to fines up to $10,000 per violation.
       
    • Only employees necessary to support essential construction may work at a construction site or business location.
       
    • Local governments, including municipalities and school districts, are allowed to continue construction projects.  If possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols.
       
  • Defense, including:  defense and national security-related operations supporting the U.S. Government or a contractor to the U.S. Government.
     
  • 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, EMS, and 911 dispatch; building cleaners or janitors; general and specialized maintenance whether employed by the entity directly or a vendor, including but not limited to heating, ventilation, and air conditioning (HVAC) and pool maintenance; automotive repair; cleaning, disinfection, and sanitation services; occupational safety and health professionals; and residential and commercial moving services.
     
  • Vendors that provide essential services or products, including logistics and technology support, child care, and services including but not limited to:  logistics; technology support for online services; child care programs and services; government owned or leased buildings; essential government services; and any personnel necessary for online or distance learning or classes delivered via remote means.
     
  • Recreation.
     
    • Parks and other open public spaces, including playgrounds and other areas of congregation within the discretion of the state or local government, so long as appropriate social distancing of at least six feet among individuals can be abided, acceptable face coverings are worn by individuals who are over the age of two and able to medically tolerate such coverings, and frequent cleaning/disinfection measures are in place for hard surfaces and objects frequently touched by multiple people (e.g., handrails, benches).
       
    • Outdoor, low-risk recreational activities are permitted, so long as social distancing and cleaning/disinfecting measures are in place.  Examples include tennis; non-motorized boat use and rentals, such as row boats, kayaks, canoes; golf and driving ranges, except miniature golf, with food and retail services subject to the restrictions that are currently in effect within the region; racket games, such as badminton, pickleball, racquetball; toss/bowl games, such as horseshoes, bocce, bean bag toss, croquet; flying disc games, such as disc golf and frisbee; shuffleboard; aerial rope courses or zip lining; rope courses including aerial rope courses; batting cages; shooting ranges; and swim classes and swim instruction.
       
    • Drive-in movie theaters, so long as social distancing and cleaning/disinfecting measures are in place.
       
    • Marinas, boatyards, and recreational marine manufacturers, for ongoing marina operations and boat repair/maintenance, where such facilities adhere to strict social distancing and sanitization protocols.
       
  • Professional services, subject to extensive restrictions.
     
    • Lawyers.  Lawyers may continue to perform all work necessary for any service so long as it is performed remotely.  Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
       
    • Real Estate.  Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public.
Individuals Must Stay Indoors to the Greatest Extent Possible

The second rule of PAUSE provides regulations with respect to the conduct of individuals.  Although these rules apply to every individual, employers should be mindful of these guidelines when implementing practices or policies for their employees.  This rule falls into two categories:  the first for the most vulnerable individuals and the second for all others.  When initially announced, fines were not anticipated for non-compliance.

On April 6, 2020, Governor Cuomo announced that individuals could be subject to a maximum fine of $1,000 (up from $500) for “violations of the state’s social distancing protocol.”

The most vulnerable groups, defined as seniors over 70, immune-compromised people, and those with underlying illness, are subject to the strictest rules:
  • Remain indoors except for solitary exercise outdoors;
     
  • Pre-Screen all visitors and aids by taking their temperature;
     
  • Do not visit households with multiple people;
     
  • Wear a mask when in company of others;
     
  • Always stay at least six feet away from individuals; and
     
  • Do not take public transportation unless urgent and absolutely necessary.
     
  • Additionally, to the greatest extent possible, everyone in the presence of vulnerable people should wear a mask.
The PAUSE rules for all other individuals are as follows:
  • No non-essential gatherings of individuals of any size for any reason (e.g., parties, celebrations, or other social events);
     
  • Any concentration of individuals outside of the home must be limited to workers providing essential services and social distancing should be practiced;
     
  • When in public individuals must practice social distancing of at least six feet from others;
     
  • Business and entities that provide essential services must implement rules that help facilitate social distancing of at least six feet; and
     
  • Individuals should limit use of public transportation to when absolutely necessary, and should limit potential exposure by spacing out at least six feet from other riders.
     
  • Additionally, sick individuals should not leave their home unless to receive medical care, and only after a telehealth visit to determine if leaving the home is in the best interest of their health.
     
  • This population should also practice social distancing, avoid contact with vulnerable populations and use disinfectant wipes as needed.
The Coronavirus situation is fluid, and laws are changing rapidly.  Our recent memorandums and other information discussing various aspects of Coronavirus can be found here.

Executive Order/EO