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Is Your Business Exempt from New York State’s 100% Workforce Reduction Mandate?

March 21, 2020

The Empire State Development Corporation (the “ESDC”) issued further guidance to inform businesses in New York State whether they are an “essential business” or if they are subject to the current workforce reduction mandate issued by Governor Cuomo.

By the ‘New York State on Pause’ Executive Order, Governor Cuomo directed that by Sunday, March 22, 2020, at 8:00 p.m., all businesses and not-for-profit entities in New York State shall reduce their in-person workforce at each individual business/work location within the state by 100%.  For the purpose of this Executive Order, the ESDC provided the following additional guidance on what “Essential Business” means:

  1. Essential health care operations including
  • research and laboratory services
  • hospitals
  • walk-in-care health clinics and facilities
  • emergency veterinary, livestock services
  • senior/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
  • licensed mental health providers
  • licensed substance abuse treatment providers
  • medical billing support personnel

     2. Essential infrastructure including

  • public and private utilities including but not limited to power generation, fuel supply and transmission
  • public water and wastewater
  • telecommunications and data centers
  • airports/airlines
  • commercial shipping vessels/ports and seaports
  • transportation infrastructure such as bus, rail, 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 including personal care products regulated by the Food and Drug Administration
  • telecommunications
  • microelectronics/semi-conductor
  • food-producing agriculture/farms
  • household paper products
  • defense industry and the transportation infrastructure

     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, appliance and building material stores
  • pet food

     5. Essential services including

  • trash and recycling collection, processing and disposal
  • mail and shipping services
  • laundromats and other clothing/fabric cleaning services
  • building cleaning and maintenance
  • child care services
  • bicycle repair
  • auto repair
  • automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
  • warehouse/distribution and fulfillment
  • funeral homes, crematoriums and cemeteries
  • storage for essential businesses
  • maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
  • animal shelters/ and animal care

     6. News media

     7. Financial Institutions including

  • banks or lending institution
  • 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

  • All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
  • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

     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 businesses including

  • law enforcement, including corrections and community supervision
  • fire prevention and response
  • building code enforcement
  • security
  • emergency management and response, EMS and 911 dispatch
  • building cleaners or janitors
  • general maintenance whether employed by the entity directly or a vendor
  • automotive repair
  • disinfection
  • residential moving services

     12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:

  • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services
  • any personnel necessary for on-line or distance learning or classes delivered via remote means

If the ESDC’s guidance does not address the function of your business and you believe it should qualify for an exemption as an “Essential Business,” you may request designation as an “Essential Business” by submitting this request form to ESDC:

https://esd.ny.gov/sites/default/files/Request%20for%20Designation%20Form_0.pdf

The form requires the following information: business name, address, contact information, number of employees, description of business function, industry, and a brief description of the business.  The form must be signed under penalty of perjury that the information provided is true and accurate.

The ESDC’s guidance further clarifies that for businesses that have both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the restrictions.

Please contact HoganWillig at 716-636-7600 with any questions regarding this Executive Order or if you’d like to discuss challenging for an “Essential Business” designation. 

For changing and up-to-date legal information, visit our COVID-19 Resource Center.