The United States Health and Human Services declared a public health emergency in the United States on January 31, 2020 to aid the healthcare community in responding to COVID-19. In the wake of COVID-19 outbreak in the State of New York, Governor Andrew M. Cuomo declared a statewide disaster emergency on March 7, 2020 to address the threat posed by the virus. Likewise, President Donald J. Trump declared a state of National Emergency on March 13, 2020 to combat COVID-19. In the days that have followed, certain municipalities in the State have also declared local states of emergency within their jurisdiction. Below is an overview of the powers of the State and the powers of municipalities to declare a state of emergency, and the limitations to exercising such powers.

State’s Declaration of Emergency

New York Executive Law (“Executive Law”) § 28 authorizes the governor to declare a disaster emergency by an executive order “[w]henever the governor, on his own initiative or pursuant to a request from one or more chief executives, finds that a disaster has occurred or may be imminent for which local governments are unable to respond adequately”. Upon declaring a state disaster emergency, the governor has the power to direct state agencies to provide assistance to local governments, including: utilizing, lending, or giving to municipalities, equipment, supplies, facilities, services of state personnel, and other resources, other than the extension of credit; distributing medicine, medical supplies, food and other consumable supplies; performing temporary emergency work essential for the protection of public health and safety on public or private lands; and making such other use of facilities, equipment, supplies and personnel as are necessary to assist in coping with the disaster or any emergency (N.Y. Exec. Law § 29).

During a disaster emergency, the governor is authorized to temporarily suspend any statute, local law, ordinance, orders, rules or regulations, if compliance with such provisions would prevent, hinder, or delay action necessary to cope, assist or aid in coping with the disaster (see § 29-a). Likewise, the governor is authorized to issue, by executive order, any directive which is necessary to cope with the disaster (see id.). The power of the governor to suspend laws and issue directives during a state disaster emergency has certain limitations. For instance, the suspension of any laws and the directives of the governor are effective for thirty (30) days. However, the governor may extend the suspension for additional periods not to exceed 30 days each, after reconsidering all the relevant facts and circumstances. It is also important to note that the state legislature has the power to terminate by concurrent resolution any executive order declaring a state disaster emergency and any suspension of laws or directives.

Following the documentation of certain travel-related and community contact transmission of the COVID-19 virus in the State, Governor Cuomo, in the exercise of his authorized powers, issued an executive order on March 7, 2020 (“EO 202”) which declared a State disaster emergency to address the threat posed by the COVID-19 virus, to be effective through September 7, 2020. Consistent with the power to issue directives during a State disaster emergency, Governor Cuomo directed the implementation of the State Comprehensive Emergency Management Plan and authorized all State agencies to take appropriate action to assist local governments and individuals in containing, preparing for, responding to and recovering from COVID-19, to protect state and local property, and to provide such other assistance as is necessary to protect public health, welfare and safety. Further, in a manner consistent with the power to suspend laws, Governor Cuomo ordered the temporary suspension and modification of certain laws through April 6, 2020 including, but not limited to:

  • Section 112 of the State Finance Law to allow the State to award emergency contracts;
  • Section 163 of the State Finance Law and Article 4-C of the Economic Development Law to allow the purchase of necessary commodities, services, technology, and materials without following the standard notice and procurement processes;
  • Section 97-G of the State Finance Law, to the extent necessary to purchase food, supplies, services, and equipment or furnish or provide various centralized services;
  • Sections 6521 and 6902 of the Education Law, to the extent necessary to permit unlicensed individuals, upon completion of training deemed adequate by the Commissioner of Health, to collect throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing; and to the extent necessary to permit non-nursing staff, upon completion of training deemed adequate by the Commissioner of Health, to perform tasks, under the supervision of a nurse, otherwise limited to the scope of practice of a licensed or registered nurse;
  • Section 224-b and subdivision 4 of section 225 of the Public Health Law, to the extent necessary to permit the Commissioner of Health to promulgate emergency regulations and to amend the State Sanitary Code;
  • Section 405 of Title 10 of the NYCRR, to the extent necessary to maintain the public health with respect to treatment or containment of individuals with or suspected to have COVID-19; etc. (see EO 202).

On March 12, 2020, Governor Cuomo issued a follow-up executive order (“EO 202.1”) to further suspend (i) laws and regulations to allow for expansion of services and temporary facilities for health and human service providers, (ii) laws and regulation relating to child care to allow flexibility for providers while continuing to protect the health and safety of children, (iii) regulations to prevent delays in providing home delivered meals and in providing services under the Expanded In-Home Services for the Elderly Program (“EISEP”) to older adults, (iv) laws to allow waiver of requirements necessary for apportionment of school aid, (v) laws and regulations relating to emergency procurement to the extent necessary to purchase necessary equipment, materials, supplies, or services, without following the standard procurement processes, including the standard prompt payment policy, (vi) laws relating to waiting periods for unemployment insurance claimants whose claims arise directly out of COVID-19 outbreak, and (vii) Article 7 of the Public Officers Law, to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed, etc. (see generally EO 202.1).

Besides the governor, State law also authorizes the chief executive officers of municipalities to declare local states of emergency and to exercise related powers.

Local Proclamations of Emergency

Executive Law § 24 authorizes the chief executive officer of a county, city, town or village to proclaim a local state of emergency within any part or all of the territorial limits of such local government “in the event of a disaster, rioting, catastrophe, or similar public emergency within the territorial limits of any county, city, town or village, or in the event of reasonable apprehension of immediate danger”, and upon a finding by the chief executive that the public safety is imperiled.

Several municipalities have exercised this power and declared local states of emergency in response to the COVID-19 virus. Some of the municipalities that have declared local states of emergency include the County of Erie, City of Buffalo, Town of Amherst, Town of Tonawanda, Town of Orchard Park, the City of Albany, etc. It is anticipated that more municipalities in the state will declare a local state of emergency as more cases of the COVID-19 virus are documented.

Unlike the state’s declaration of disaster emergency which is effective for six (6) months, a proclamation of a local state of emergency is only effective for a period of thirty (30) days or until rescinded by the chief executive, whichever occurs first. However, the chief executive of a municipality may issue an additional proclamation to extend the local state of emergency for additional period of 30 days.

Chief executives of municipalities have the power to promulgate local emergency orders to protect life and property or to bring an emergency under control (see § 24). For instance, in an effort to limit the spread of COVID-19, the chief executive officer of a municipality may, among other things, establish curfew, prohibit and control pedestrian and vehicular traffic; suspend or limit the sale, use or transportation of alcoholic beverages, firearms and liquids; prohibit and control the presence of persons on public streets and places; and designate emergency medical shelters and community based care centers. Notably, the Executive Law states, in relevant part, that any person who knowingly violates any local emergency order promulgated following the proclamation of a local state of emergency will be guilty of a class B misdemeanor.

Additionally, the chief executives of municipalities are authorized to suspend any local laws, ordinances or regulations, subject to federal and state constitutional, statutory and regulatory limitations, which may prevent, hinder or delay necessary action in coping with a disaster (see id.). For instance, the executive officer of a municipality may suspend the municipality’s procurement policy and procedures to provide flexibility for the purchase of goods and services necessary to respond to COVID-19.

The powers of chief executives of municipalities to suspend laws and promulgate local emergency orders have the following limitations under the Executive Law:

  • The suspension of local laws is effective for five (5) days, unlike suspensions by the governor which is effective for 30 days. Any such suspension may be extended for additional periods of five (5) days each during the pendency of the local state of emergency, upon consideration of all relevant facts and circumstances;
  • No suspension of law is to be made if the suspension will not safeguard the health and welfare of the public and is not reasonably necessary to the disaster effort;
  • An order of suspension must provide for such suspension only under particular circumstances. The order may provide for the modification of the requirements of such local law, ordinance or regulation suspended, and may include other terms and conditions; and
  • Any such suspension order must provide for the minimum deviation from the requirements of the local law, ordinance or regulation suspended consistent with the disaster action deemed necessary.

From the foregoing, the suspension of local laws and/or policies by the chief executive of a municipality during this COVID-19 outbreak must be tailored to meet the emergency and reasonably necessary to the disaster effort.

Governor Cuomo has announced that New York, New Jersey and Connecticut will jointly take collaborative measures to combat COVID-19 and effectuate a uniform approach of social distancing to slow the spread of COVID-19, including, but not limited to, limiting crowd capacity for recreations and social gatherings to 50 people, requiring citizens to order food for take-out or delivery rather than being on-site in restaurants, and temporarily closing theatres, gyms, and casinos. With New York having the highest number of confirmed cases of COVID-19, it is very likely that other domains of corporate and social life will be restricted to prevent the spread of COVID-19.

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.