Late last week, New York Governor Cuomo issued Executive Order 202.8 which mandates that, starting Sunday, March 22nd at 8 P.M., all non-essential businesses and not-for-profit entities “shall reduce the[ir] in-person workforce at any work locations by 100%.” This sweeping directive also orders that, in furtherance of New York’s COVID-19 response efforts, all businesses “shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize.” In his press conference announcing the mandate, which includes a broader 10-point “New York State on PAUSE” policy plan to confront the expanding virus, the Governor noted that “these provisions will be enforced” with “civil penalties,” and that “these are not helpful hints . . . these are orders.” The order directs civil penalties ranging from $2,000 to $10,000 for varying violations of the order. The executive order will be in effect until revoked by the Governor.

Importantly, the provisions of the executive order do not require in-person work environment restrictions for “essential” businesses, and further states that “[a]ny entity providing essential services or functions whether to an essential business or a non-essential business shall not be subjected to the in-person work restriction, but may operate at the level necessary to provide such service of function.” (emphasis added). In Q&A Guidance released by the Empire State Development Corporation (ESD), the State addresses situations where non-essential businesses may nonetheless provide essential services or support to essential businesses, stating: “If your firm is a vendor, supplier or provides other support to an Essential Business that is required for the Essential Business’s operation, then your business is exempt from the employment reduction provisions contained in Executive Orders 202.8. However, only those employees necessary to support the Essential Business are exempt from the employment reduction requirements of Executive Orders 202.8 and your business is still required to utilize telecommuting or work from home procedures to the maximum extent possible.” The Q&A Guidance also clarifies that non-essential businesses may have a single person temporarily attend to routine business needs (e.g. picking up mail or performing a routine function each day), so long as they “will not be in physical contact with other people.”

The ESD Guidance defines “essential businesses” as follows:

1. Essential 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
• medical supplies and equipment 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

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 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/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 or management

6. News media

7. Financial institutions including:

• banks
• insurance
• payroll
• 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:

• 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
• 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
• essential government services

If the function of your business is not listed above by ESD, but you believe that it should be deemed “essential” (in that it is an entity providing essential services or functions), your business may formally request designation as “essential” under the order. ESD has provided the pertinent request form here. Requests by businesses to be designated as “essential” as described above, should only be made if they are NOT already covered by the ESD guidance. The ESD guidance also exempts any business that only has a single occupant/employee (e.g. gas stations) – these workplaces need not submit a request to be designated as an essential business.

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