March 21, 2020
Employment Law Alert
Author(s): Kimberly K. Harding
Governor Cuomo has placed New York State on “PAUSE” in his most recent Executive Order and required all non-essential businesses and not-for-profit entities to reduce their in-person workforces by 100% or close by 8:00 p.m. on March 22, 2020. This alert discusses what employers need to know about this new Executive Order, including which entities are considered ‘essential’.
On March 20, 2020, New York State Governor Andrew Cuomo implemented his “New York State on PAUSE (Policies Assure Uniform Safety for Everyone)” initiative by signing Executive Order 202.8 (the “PAUSE Order”). The PAUSE Order includes a number of restrictions upon the daily lives of New Yorkers statewide, including strict limitations on outdoor activities and the use of public transportation, and implements numerous temporary modifications of New York laws and regulations. However, the most significant aspect of the PAUSE Order is the mandate that all non-essential businesses and not-for-profit entities close or reduce their in-person workforces by 100% by 8:00 p.m. on March 22, 2020.
The PAUSE Order further amends Executive Order 202.6, dated March 18, 2020, which, as we discussed in a prior alert [https://www.nixonpeabody.com/en/ideas/articles/2020/03/19/nys-in-person-workforce-reduction ], ordered all businesses and not-for-profit entities to reduce their in-person workforces by 50%, and then 75%, and to utilize telecommuting and work-from-home arrangements “to the maximum extent possible.” As with Executive Order 202.6, the PAUSE Order provides that “[a]ny essential business or entity providing essential services or functions whether to an essential business or a non-essential business” is not subject to the in-person workforce restriction, but rather “may operate at the level necessary to provide such service or function.” Similarly, under the PAUSE Order, non-essential businesses and not-for-profit entities may continue to operate via telecommuting and other work-from-home arrangements.
In connection with Executive Order 202.6, Governor Cuomo and the New York State Department of Economic Development d/b/a Empire State Development (“ESD”) published guidance identifying essential businesses which are not subject to the in-person workforce restrictions, which is available at https://esd.ny.gov/guidance-executive-order-2026. This guidance has not been modified by the PAUSE Order. The guidance identifies the following types of businesses and industries as “essential”:
1. Essential health care operations including
2. Essential infrastructure including
3. Essential manufacturing including
4. Essential retail including
5. Essential services including
6. News media
7. Financial Institutions including
8. Providers of basic necessities to economically disadvantaged populations including
9. Construction including
11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses including
12. Vendors that provide essential services or products, including logistics and technology support, child care and services:
The PAUSE Order is the first in this series of Executive Orders to specify a penalty for noncompliance, stating it will be punishable as a violation of an order pursuant to section 12 of the Public Health Law, which provides for civil monetary penalties, including escalating penalties for repeat violations.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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