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In the Context of New York’s Executive PAUSE Order, Your Business Might Be More “Essential” Than You Think

As any business in New York State now knows, on March 20, 2020, Governor Andrew Cuomo issued Executive Order 202.6 (the Policies Assure Uniform Safety for Everyone or PAUSE order) in response to the COVID-19 pandemic. The PAUSE order directed that only “essential” businesses could remain open at their regular work locations/offices. 

The PAUSE order’s purpose was to increase “social distancing” and to be a “blunt” instrument (in the governor’s words) to slow the spread of this contagious virus. Accordingly, all “nonessential” businesses have had to reduce their in-office or location workforce by 100 percent. This effectively meant that businesses had to quickly adapt to working “remotely” from home or other locations, and that “destination” businesses (retail stores, barbershops, etc.) had to close temporarily. 

Essential Businesses Defined under the PAUSE Order

Under the PAUSE order, “essential businesses” are defined as follows. 

Essential Health Care Operations

  • research and laboratory services

  • hospitals

  • walk-in health care 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 services

  • nursing homes, or residential health care facilities or congregate care facilities

  • medical supplies and equipment manufacturers and providers 

Essential Infrastructure

  • 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 

Essential Manufacturing

  • food processing, manufacturing agents, including all foods and beverages

  • chemicals

  • medical equipment/instruments

  • pharmaceuticals

  • sanitary products

  • telecommunications

  • microelectronics/semiconductor

  • agriculture/farms

  • household paper products 

Essential Retail

  • grocery stores, including all food and beverage stores

  • pharmacies

  • convenience stores

  • farmers' markets

  • gas stations

  • restaurants/bars (but only for take-out/delivery)

  • hardware and building material stores 

Essential Services

  • 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 

News Media

Financial Institutions

  • banks

  • insurance

  • payroll

  • accounting

  • services related to financial markets 

Providers of Basic Necessities to Economically Disadvantaged Populations

  • homeless shelters and congregate care facilities

  • food banks

  • human services providers whose function includes the direct care of patients in state-licensed or state-funded voluntary programs; the care, protection, custody and oversight of individuals in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support 

Construction

  • skilled trades such as electricians, plumbers

  • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes 

Defense and National Security–Related Operations Supporting the U.S. Government or a Contractor to the U.S. Government 

Essential Services Necessary to Maintain the Safety, Sanitation and Essential Operations of Residences or Other Essential Businesses

  • 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 through a vendor

  • automotive repair

  • disinfection 

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 government-leased buildings

  • essential government services 

Application for Waiver

Although your business may not fall directly into one of the categories listed, subsequent guidance provided by the Governor’s Office has given certain businesses the opportunity to be deemed “essential” by applying for a “waiver” and adequately explaining why you believe that your business is essential or why it is an entity providing services or functions that in and of themselves are essential or that are essential to the “essential businesses” listed in the PAUSE order. Although the intention of the PAUSE order is laudable to address the pandemic, and applications for such a waiver should not be sought lightly, the governor has realized that certain exceptions need to be made and not all scenarios were considered when the order was issued. If you are unsure as to whether you are an “essential business,” the waiver application is the route to go, as the governor has stated that businesses can be heavily fined or even shut down if they are found to be violating the PAUSE order. Already, a number of businesses have successfully received “waivers” and been classified as “essential” when they weren’t initially listed. 

So, it is not enough for your business to “self-interpret” or “pigeonhole” into one of the “essential” businesses listed above, in particular if you are “close to the line” or only partly doing one of the activities above. You need to go in with a strong case on the waiver form and have a legal advocate at your side to help explain to the governor’s exacting staff why your business is “essential” or is servicing an “essential” business. 

If denied, you may need to take the dramatic step of filing an “Article 78” court filing to force the issue, and quickly. Although the court system has been shut down almost entirely to new civil legal proceedings by order of the Chief Administrative Judge of the State of New York, there is a limited exception to file proceedings for “any other matter the Court deems essential.” Whether a business is “essential” may very well be one of the civil matters that the courts deem “essential” to hear and decide, and decide quickly. You need to consider this – the future and survival of your business could depend on it. 

© 2020 Wilson Elser

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About this Author

Peter Lauricella, Litigator, Wilson Elser Law Firm
Partner

Peter Lauricella is the chair of the Albany office’s Litigation practice, leading a growing team of more than 15 attorneys and paraprofessionals. Additionally, Peter is vice chair of the firm’s nationwide Commercial Litigation practice, representing clients in all types of complex commercial and corporate litigation matters, as well as in general corporate transactions, across the state and in other jurisdictions. He also is regularly retained to defend engineers and architects, accountants, financial professionals, and directors and officers in professional liability...

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