Following an increase in documented coronavirus (COVID-19) cases, New York Governor Andrew Cuomo issued an executive order permitting the state Department of Health to identify geographic areas that require enhanced public health restrictions based on clusters of COVID-19 cases. The permitted restrictions include mandatory business closures, and are to be based on risk-level categorizations (red, orange, or yellow risk zones) with corresponding levels of constraint meant to mitigate COVID-19 transmissions in those areas.

EXECUTIVE ORDER 202.68

The restrictions for these color-coded zones shall remain in place for a minimum of 14 days and include:

• Red: Nonessential businesses, which include all businesses other than those defined as essential in prior Empire State Development Corporation guidance, must reduce their in-person workforce by 100%. Additionally, all nonessential gatherings of any size must be postponed or cancelled, restaurants can only serve takeout or delivery (and no food may be served for on-premises consumption, whether indoors or outdoors), houses of worship are limited to a capacity limit of 25% or 10 people – whichever is fewer, and schools must close for in-person instruction.
• Orange: Certain nonessential businesses associated with a higher risk transmission of COVID-19 (including gyms, fitness centers/classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologist, estheticians, laser hair removal/electrolysis providers, and all other personal care services), must reduce their in-person workforce by 100%. Additionally, all nonessential gatherings must be limited to 10 people, restaurants cannot provide indoor service and each seated party cannot exceed four people, houses of worship are limited to a capacity limit of 33% or 25 people – whichever is fewer, and schools must close for in-person instruction.
• Yellow: There are no mandatory business closures for companies operating in zones deemed to be yellow-risk. Rather, all nonessential gatherings must be limited to 25 people, restaurants can provide indoor service but each seated party, whether indoor or outdoor, cannot exceed four people, houses of worship are limited to a capacity limit of 50%, and the New York State Department of Health shall issue guidance by October 9 regarding mandatory testing of students and school personnel, which all schools in the applicable zone must adhere with to continue operation.

The Empire State Development Corporation (ESDC) is instructed to maintain guidance that includes an up-to-date list of areas deemed at risk. Initially, there are five regions subject to restrictions under the executive order, including portions of Broome County, Brooklyn, Orange County, Queens, and Rockland County. Companies can determine whether there are restrictions in place at a certain address using a new tool published by the state.

The order takes effect immediately and will be enforced in designated zones beginning October 9, 2020, and will remain in effect through at least November 5, 2020.

PENALTIES

Violations of may result in a penalty of $1,000 for each violation.

The order also provides that any individual who encourages, promotes, or organizes a nonessential gathering as defined by the New York State Department of Health will be liable for a civil penalty of up to $15,000 per day.

ANALYSIS

Employers with operations in New York should monitor the ESDC guidance and maps to ensure they remain compliant with any restrictions applicable to their operations in these regions. Additionally, employers should consider creating a plan of action for responding to mandated closures or an imposition of limitations on gathering size applicable to their operations. Employers should also be prepared to address concerns from employees who must travel from a restricted zone to a workplace not in a restricted zone, or vice versa.

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