Mar 30, 2020

New York's Response to the Coronavirus Pandemic Executive Orders 202.6 and 202.8

By Michael J. Marotte, Esq.


Governor Cuomo has issued two Executive Orders in New York. EO 202.8 modifies EO 202.6. The relevant language of EO 202.8 is as follows:

The provisions of Executive Order 202.6 are hereby modified to read as follows: Effective on March 22 at 8 p.m.: All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, a New York telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at a New York work locations by 100% no later than March 22 at 8 p.m. A New York essential business or entity providing essential services or functions shall not be subject to the in-person restrictions. An 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 or function. A New York business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law.

Violations of Section 12 of the New York Public Health Law carry the following penalties:

1. $2,000 per violation;

2.      the penalty may be increased to an amount not to exceed $5,000 for a subsequent violation within 12 months;

3.      the penalty may be increased to an amount not to secede $10,000 if the violation directly
results in physical harm.

Here is the link for EO 202.8: EO 202.8

The Order does not provide clarification on what qualifies as an “essential business”. The Empire State Development Corporation (ESD) issued guidance and for purposes of the Order, “essential businesses” fall under twelve specified categories: (1) essential health care operations; (2) essential infrastructure; (3) essential manufacturing; (4) essential retail; (5) essential services; (6) news media; (7) financial institutions; (8) providers of basic necessities to economically disadvantaged populations; (9) construction; (10) defense; (11) essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; (12) vendors that provide essential services or products, including logistics and technology support, child care and services. See: https://esd.NewYork.gov/guidance-executive-order-2026. If the function of a business is not identified by ESD, but it is believed to be “essential” (in that it is an entity providing essential services or functions), you can formally request designation as “essential” under the order. 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.

Here is the list of ESD identified “essential businesses”

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

·         childcare 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, childcare 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

·         childcare programs and services

·         government owned or leased buildings

·         essential government services

DISCLAIMER: This Alert is designed to keep you aware of recent developments in the law. It is not intended to be legal advice, which can only be given after the attorney understands the facts of a particular matter and the goals of the client.

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