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August 03, 2020

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New York State Mandates That Non-Essential Workers Must Stay Home

Beginning Sunday, March 22, 2020 at 8:00 PM, in accordance with a forthcoming Executive Order to be issued by Governor Andrew Cuomo, only essential businesses and not-for-profit entities in New York State may utilize an in-person workforce. This extends Governor Cuomo’s previous Executive Order 202.7, which required all businesses and not-for-profit entities not otherwise deemed essential to (1) reduce their in-person workforce by 75%, and (2) utilize teleworking arrangements to the greatest extent possible.

The New York State Department of Economic Development d/b/a Empire State Development has issued guidance for determining whether a business enterprise is essential. According to the guidance, the following are considered “essential businesses” and are thus exempt from the Order:

  1. Essential health care operations – including research and laboratory services, hospitals, walk-in health care facilities, veterinary and animal health services, elder care, medical wholesale and distribution, home health care workers or aides, doctor and dentist offices, nursing homes and similar facilities, and medical supplies and equipment providers.

  2. Essential infrastructure – including utilities such as power generation and fuel supply, public water and wastewater, telecommunications and data centers, airports/airlines, and other transportation infrastructure.

  3. Essential manufacturing – including food processing, chemicals, medical equipment/instruments, pharmaceuticals, safety and sanitary products, telecommunications, microelectronics/semi-conductor, agriculture/farms, and paper products.

  4. Essential retail – including grocery stores, food and beverage stores, pharmacies, convenience stores, farmer’s markets, gas stations, restaurants and bars for take-out only, and hardware and building material stores.

  5. Essential services – including trash and recycling services, mail and shipping services, laundromats, dry cleaning, building cleaning and maintenance, child care services, auto repair, warehouse distribution and fulfillment, funeral homes, crematoriums, cemeteries, storage for essential businesses, and animal shelters or animal care or management.

  6. News media.

  7. Financial institutions – including banks, insurance, payroll, and accounting.

  8. Providers of basic necessities to economically disadvantaged populations – including homeless shelters, congregate care facilities, food banks, and other human service providers.

  9. Construction – including skilled trades such as electricians and plumbers, and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.

  10. Defense and national security-related operations.

  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, auto repair, disinfection, and doormen.

  12. Vendors that provide essential services or products needed to ensure the continuing operation of government agencies and to provide for the health, safety and welfare of the public – including logistics, technology support, child care services, government owned or leased buildings, and essential government services.

If an employer’s business is not listed above, but they believe that it is essential or that it is an entity providing essential services, the employer may request a designation as an essential business on the state’s website. However, businesses with only one employee are automatically deemed exempt and need not request a designation. In addition, businesses ordered to close based on the state’s restrictions on gatherings with more than 500 participants (e.g., gyms, movie theatres, sporting events) must remain closed and should not request an essential business designation.

The Guidance also clarifies that the order applies to each business location individually, rather than the business as a whole. In addition, if a business or entity provides both essential and non-essential services, only those services that are necessary to support essential services are exempt from the restrictions.

Also effective March 21, 2020 at 8:00 PM (and until further notice), all barbershops, hair salons, tattoo or piercing parlors and related personal care services must close to members of the public. This also includes: (1) nail technicians; (2) cosmetologists and estheticians; and (3) the provision of electrolysis or laser hair removal services.

© 2020 Proskauer Rose LLP. National Law Review, Volume X, Number 80

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About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm
Partner

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

212.969.3132
Arielle Kobetz, Proskauer Law Firm, Labor and Employment Attorney
Associate

Arielle Kobetz is an associate in the Labor & Employment Law Department. She assists employers in a wide range of areas, including discrimination, wage and hour, and traditional labor.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues. 

212-969-3304
Alex Downie  New York  Labor & Employment Law
Law Clerk

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes...

212-969-3848