On April 9, the Governor issued and updated Executive Order (202.6) to provide further guidance on determining whether a business is “Essential” (and thereby permitted to operate) or “Non-Essential” (and, thereby NOT permitted to operate).
ESSENTIAL BUSINESSES OR ENTITIES, including any for-profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are NOT subject to the in-person restriction. Essential Businesses must continue to comply with the guidance and directives for maintaining a clean and safe work environment issued by the Department of Health (DOH) and every business, even if essential, is strongly urged to maintain social distancing measures to the extent possible.
This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development (ESD) and applies to each business location individually and is intended to assist businesses in determining whether they are an essential business.
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 workforce reduction restrictions.
State and local governments, including municipalities, authorities, and school districts, are exempt from these essential business reductions, but are subject to other provisions that restrict non-essential, in-person workforce and other operations under Executive Order 202.
For purposes of Executive Order 202.6, “Essential Business,” shall mean businesses operating in or as:
1. Essential health care operations including:
research and laboratory services
hospitals
walk-in-care health clinics and facilities
emergency veterinary, livestock medical services
senior/elder care
medical wholesale and distribution
home health care workers or aides for the elderly
doctor and emergency dental
nursing homes, 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
emergency chiropractic services
physical therapy, prescribed by medical professional
occupational therapy, prescribed by medical professional
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
airlines/airports
commercial shipping vessels/ports and seaports
transportation infrastructure such as bus, rail, for-hire vehicles, garages
hotels, and other 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 (FDA)
telecommunications
microelectronics/semi-conductor
food-producing agriculture/farms
household paper products
defense industry and the transportation infrastructure
automobiles
any parts or components necessary for essential products that are referenced within this guidance
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
telecommunications to service existing customers and accounts
delivery for orders placed remotely via phone or online at non-essential retail establishments; provided, however, that only one employee is physically present at the business location to fulfill orders
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
marine vessel repair and marinas, but only to support government or essential commercial operations and not for recreational purposes
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 including dog walking, animal boarding
landscaping, but only for maintenance or pest control and not cosmetic purposes
designing, printing, publishing and signage companies to the extent that they support essential businesses or services
remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted
6. The news media
7. Financial Institutions including:
banks or lending institution
insurance
payroll
accounting
services related to financial markets, except debt collection
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 safely 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, but only to the point that it is safe to suspend work).
Essential construction may proceed, to the extent that:
the construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
the construction is for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
the construction is necessary to protect the health and safety of occupants of a structure;
the construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
the construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ at: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;
the construction is for existing (i.e. currently underway) projects of an essential business; or
the construction work is being completed by a single worker who is the sole employee/worker on the job site.
At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits. Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation.
Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site. Any other business activities being completed that are not essential are still subject to the restrictions provided by Executive Order 202.
As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.
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 online or distance learning or classes delivered via remote means
13. Recreation
Parks and other open public spaces, except playgrounds and other areas of congregation where social distancing cannot be abided
However, golf courses are not essential and the use of boat launches and marinas for recreational vessels are not considered essential
14. Professional services with extensive restrictions
Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and
cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).
Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed.
Congregate services within houses of worship are prohibited. Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming.
If the function of your business is not listed, but you believe that it is essential or it is an entity providing essential services or functions, the guidance allows you to request designation as an essential business.
Note, however, that pursuant to the Governor’s Executive Orders, the following businesses are specifically enumerated as non-essential and are, therefore, unable to request a designation:
Any large gathering or event venues, including but not limited to establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience;
Any dine-in or on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption;
Any facility authorized to conduct video lottery gaming or casino gaming;
Any gym, fitness centers, or exercise classes, except the remote or streaming service noted above;
Any movie theater;
Any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease;
All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions; and
Any barbershops, hair salons, tattoo or piercing parlors and related personal care services, including nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services.
About Duane Morris:
Duane Morris has created a COVID-19 Strategy Team to help organizations plan, respond to and address this fast-moving situation. Please see our COVID-19 site or contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For Further Information:
If you have any questions about this Alert, please contact Brad A. Molotsky, Meghan DiPerna, Ken Lazaruk, Elizabeth Mincer, or any member of our COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.
