As reported in our earlier Legal Alert, New York’s Empire State Development Corporation (ESDC) released guidance late Thursday night on Governor Andrew Cuomo’s Executive Order, which requires all non-essential businesses to reduce their in-person workforce.  Since the Governor’s initial announcement, he has announced two additional executive orders that require further reductions to in-person workforces.

Initially, Executive Order 202.6 only required businesses to reduce their in-person workforce by 50% no later than March 20 at 8 p.m.  On Thursday, March 19th, the Governor authorized Executive Order 202.7, which modifies Executive Order 202.6 to require businesses to reduce their in-person workforce by 75 percent, effective March 21 at 8 p.m. In addition, pursuant to Executive Order 202.7, all barbershops, hair salons, tattoo or piercing parlors and related personal care services must be closed to members of the public effective March 21 at 8 p.m. This includes nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services.

This morning, after reporting a large spike in new COVID-19 cases, the Governor announced that he will be signing yet another executive order that will require 100 percent of non-essential employees to stay home effective March 22 at 8 p.m.  The Governor also announced that if businesses fail to comply, they may be subject to civil fines and closure.

The workforce reduction requirement need only be a reduction from the business’s “pre-state of emergency declaration” employment workforce.  This is an important clarification for businesses that may have already reduced their workforce during the period since Governor Cuomo declared a State of Emergency on March 7, 2020.  The reductions apply to each business location individually, and businesses with only a single occupant/employee at a given location are exempt from the requirement. For businesses 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.

The ESDC has released guidance to assist New York businesses in determining whether they provide “essential services” that are exempt from the restriction.  The guidance provides a detailed list of “essential businesses or entities” that are not subject to the reduction requirement.  Still, the restrictions have sparked questions among the business community as to which services qualify as “essential.”

All businesses should promptly review the guidance for a detailed listing of “essential” businesses.  If your business is not listed in the guidance but you believe your business is essential, you may request to be designated as an essential business by completing the ESDC’s form and emailing it to COVID19designations@esd.ny.gov.  We encourage you to contact legal counsel to assist you with this process.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Melville, New York City, Rochester, Saratoga Springs, Syracuse, Uniondale and White Plains, as well as New Haven, Connecticut and Newark, New Jersey