The information contained in this Legal Alert is applicable as of today, March 17, 2020. Many situations are so fact specific and nuanced that this Legal Alert only addresses some of the more pressing ongoing issues. The discussion below is therefore general and does not address all considerations and specific analyses that may need to be undertaken prior to taking action.
Late last night, Governor Andrew Cuomo issued his fifth Executive Order, outlining new directives with the goal of containing the expansion of the COVID-19 outbreak. As set forth in our legal alert dated March 16, 2020, Governor Cuomo announced during a press conference earlier that day that he was directing local governments to reduce their workforce by at least 50% and to allow non-essential employees to stay at home. Executive Order 202.4 formalizes and expands upon this directive, providing as follows:
Any local government or political subdivision shall, effective March 17, 2020, allow non-essential personnel as determined by the local government, to be able to work from home or take leave without charging accruals, except for those personnel essential to the locality’s response to the COVID-19 emergency. Such non-essential personnel shall total no less than fifty-percent (50%) of the total number of employees across the entire workforce of such local government or political subdivision.
As also stated in our legal alert dated March 16, 2020, essential employees should be considered any individuals whose job functions are essential to the effective operation of their agency or authority, any individuals who must be physically present to perform their jobs, or any individuals who are involved in the emergency response to COVID-19. Non-essential employees should be considered any individuals who do not need to be physically present to perform their job functions, or are not currently required to meet the core functions of their agency or authority during this emergency. The Order does not indicate who is authorized to make the determination as to which employees are essential or non-essential (Mayor, Supervisor, Administrator or Board of Trustees). However, given the exigencies of the current situation, and from a practical standpoint, we believe that a municipality’s administration (the Chief Elected Official or Manager/Administrator) is authorized to make such determinations without Board action. However, municipalities should also check their policies, handbooks and/or local laws for any definitions of which employees are considered “essential”.
In accordance with the language of Executive Order 202.4, municipalities should examine their workforce and identify a minimum of 50% of their employees as non-essential, to be assigned to work from home or take leave during the effective period of the Order, which currently runs from March 17, 2020 through April 15, 2020. Moreover, based upon the language that non-essential employees must be allowed “to work from home or take leave without charging accruals,” the Order appears to provide that all non-essential employees will be entitled to continue to receive their regular compensation, regardless of whether they will be working from home or will be placed on leave. This would include full-time, part-time and hourly employees. Furthermore, the language is clear that employees may not be required to use any accruals (i.e., sick leave time, personal leave time, vacation leave time and/or comp time), during such leave. Please note that this language contains enough ambiguity that a municipality could reasonably take the position that the Order does not apply to employees who do not receive paid leave time accruals, such as some hourly, temporary and/or part-time employees. However, it is our opinion that the intent of this language is to provide all non-essential employees with continued compensation.
A copy of Executive Order 202.4 can be found here:
Governor’s Executive Order 202.4
Prior Keane & Beane Covid-19 Legal Alerts
Keane & Beane, P.C. has prepared several Legal Alerts concerning the State’s response to COVID-19 and the impacts on local governments. Our Legal Alerts are available at the links below:
- Open Meetings Law in Light of COVID-19
- COVID-19 Issues for Municipalities
- Updates From Governor’s March 16, 2020 Press Conference
Consult Counsel Regarding Specific Questions
Given the fluidity of this rapidly developing situation, we encourage you to reach out to a member of the Keane & Beane Public Sector Practice Group with questions regarding specific situations. We note that there are legislative developments in Congress and New York which impact each of these questions, and which we are closely monitoring. Because of the frequent developments, you should consult counsel regarding specific questions.
For questions on employment and labor issues contact William Kang, Esq. or Lance H. Klein and on general municipal issues contact Nicholas M. Ward-Willis, Esq. or Drew Victoria Gamils, Esq. or any other attorney in our Public Law Sector Practice Group.