On March 18, 2020, Governor Cuomo signed an Executive Order (the “March 18 Order”) requiring all “non-essential” New York businesses to reduce their in-person workforce at any work location by 50%.  On March 19, 2020, Governor Cuomo issued another Executive Order (the “March 19 Order”), requiring all “non-essential” New York businesses to reduce their in-person workforce at any work location by 75%.

Governor Cuomo issued yet another Executive Order (the “March 20 Order”), requiring all “non-essential” New York businesses to reduce their in-person workforce at any location by 100%.  The March 20 Order will take effect on March 22, 2020 at 8 p.m. and will remain in effect through April 17, 2020.  New York State has not yet made the text of the March 20 Order available.

“Essential” businesses are exempt from the March 20 Order.  Governor Cuomo instructed the Empire State Development Corporation (“ESDC”) to issue guidance elaborating on which businesses are deemed “essential”.  The latest ESDC Guidance is available here.  Pursuant to the ESDC, “essential” businesses include:

1. Essential health care operations, including:

• research and laboratory services
• hospitals
• walk-in-care health 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
• nursing homes, or residential health care facilities or congregate care facilities
• medical supplies and equipment manufacturers and 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, garage
• 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
• telecommunications
• microelectronics/semi-conductor
• agriculture/farms
• household 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
• building cleaning and maintenance
• child care services
• auto repair
• warehouse/distribution and fulfillment
• funeral homes, crematoriums and cemeteries
• storage for essential businesses
• animal shelters

6. News media

7. Financial Institutions, including:

• banks
• insurance
• payroll
• accounting
• services related to financial markets

8. Providers of basic necessities to economically disadvantaged population, 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

12. 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 leased buildings
• essential government services

The ESDC guidance further provides that, “With respect to business or entities that operate or provide 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.”

If your business is not listed above, but you believe that it is essential, then you may submit a request to the ESDC that your business be designated “essential.”  Businesses that only have a single occupant/employee (i.e. gas stations) are deemed exempt and need not submit a request to be designated as an essential business.  In addition, businesses that were previously ordered to close under earlier guidance placing restrictions on any gathering with 500 or more participants are ineligible to request that they be designated “essential.”

This post features contributions from Jamie Moelis.