COVID-19: “Essential Employers” – New York

April 13, 2020

Over the past several days, in the wake of the COVID-19 outbreak, the governors of New York, New Jersey, and Connecticut issued executive orders mandating that all non-essential businesses remain closed or have their employees work remotely to the fullest extent possible. This article will outline New York state’s directive and definition of “essential business.”

On March 18, 2020, Governor Andrew Cuomo signed Executive Order 202.6, which directed all non-essential New York businesses and non-for-profit entities to utilize telecommuting and remote work procedures and reduce their in-person workforces at any workplace location by 100%.

The guidance provided by the New York State Department of Economic Development outlines what businesses and entities are defined as essential. It also notes that essential businesses must comply with Department of Health directives for maintaining a clean and safe work environment.

Under the Executive Order and guidance, “essential business” means:

1. Essential health care operations, including:
• 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 manufacturers and providers

2. Essential infrastructure, including:
• 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

3. Essential manufacturing, including:
• 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

4. 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 and building material stores

5. Essential services, including:
• 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

6. News media

7. Financial Institutions, including:
• banks
• insurance
• payroll
• accounting
• services related to financial markets

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, including:
• defense and national security-related operations supporting the U.S. Government or a contractor to the US 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

12. Vendors that provide essential services or products, including logistics and technology support, child care and services:
• logistics
• technology support for online services
• child care programs and services
• government owned or leased buildings
• essential government services

Any business that violates the Executive Order regarding the non-essential business closures may be held liable for a violation of the State Public Health Law, which provides for (i) civil penalties of up to $2,000 for every violation; (ii) which may be increased to up to $5,000 for a subsequent violation where the person committed the same violation within 12 months of the initial violation; and (iii) which could then be increased to up to $10,000 if the violation results in serious physical harm to any patient.

The guidance states that every business is strongly urged to maintain social distance to the extent possible, even if designated essential. If your business or entity provides both essential and non-essential services, only those functions which are necessary to support the essential services are exempt from the Executive Order restrictions.
In addition, houses of worship are not mandated to close, but it is strongly encouraged that no “congregate services” be held and social distance maintained.

If your business function is not listed as essential, you may request designation as an essential business if you believe that you provide essential services or functions. To submit this request, please follow this link.

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