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 PossibleMarch 20, 2020
This morning, 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 and New York State is still determining which businesses fall into this exception under PAUSE.
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. While the PAUSE Executive Order has not yet been published, we anticipate that this Executive Order will remain in effect until at least April 19 based on the effective dates of the Previous Executive Orders.
“Essential Services or Functions” Exemption
This mandate does not apply to businesses or entities providing “essential services or functions.” During the March 20 announcement of PAUSE, Governor Cuomo indicated that New York State is still determining which businesses and entities qualify as “essential.” In the interim, employers may find informative the prior guidance issued subsequent to the March 19 Executive Order, as outlined below.
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 requires that the New York State Department of Economic Development (d/b/a Empire State Development Corporation (“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 March 19 guidance clarified the following:
- Essential & Non-Essential Businesses. 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.”
- Businesses Previously Ordered Closed. Businesses previously ordered to close “under the restrictions on any gathering with 500 of more participants, including but not limited to bars, restaurants, gyms, movie theaters, casinos, auditoriums, concerts, conferences, worship services, sporting events, and physical fitness centers, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business.”
- Single Occupant Businesses. Single occupant/employee businesses (i.e., gas station) are exempt and need not seek designation as an essential business.
- Essential health care operations include: research and laboratory services; hospitals; walk-in-care health facilities; emergency veterinary and livestock services; elder care; medical wholesale and distribution; home health care workers or aides for the elderly; doctor and emergency dental; nursing homes; or residential health care facilities or congregate care facilities; medical supplies and equipment providers.
- Essential infrastructure includes: utilities including 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, garages; hotels and places of accommodation.
- Essential manufacturing includes: food processing, manufacturing agents, including all foods and beverages; chemicals; medical equipment/instruments; pharmaceuticals; sanitary products; telecommunications; microelectronics/semi-conductor; agriculture/farms; household paper products.
- Essential retail includes: 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 and building material stores.
- Essential services include: trash and recycling collection, processing and disposal; mail and shipping services; laundromats; building cleaning and maintenance; child care services; auto repair; warehouse/distribution and fulfillment; funeral homes, crematoriums and cemeteries; storage for essential businesses; animal shelters.
- News Media
- Financial Institutions include: banks; insurance; payroll; accounting; services related to financial markets.
- Providers of basic necessities to economically disadvantaged populations include: 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.
- Construction includes: skilled trades such as electricians, plumbers; other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.
- Defense includes: defense and natural 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 include: 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; doormen.
- 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 include: logistics; technology support for online services; child care programs and services; government owned or leased buildings; essential government services.
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. At this time, fines are not anticipated for non-compliance.
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 6 feet; and
- Individuals should limit use of public transportation to when absolutely necessary, and should limit potential exposure by spacing out at least 6 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.