Executive Order 202.7 Shutters Personal Care Businesses and Further Reduces On-Site Workforce of Non-Essential Businesses
Empire State Development Corporation Issues Guidance on What Constitutes an Essential Business
To help our clients navigate the coronavirus (COVID-19) crisis, Keane & Beane is providing numerous Legal Alerts on a variety of issues. The information contained in this Legal Alert is applicable as of today, March 20, 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.
On Friday, March 20, 2020, Governor Cuomo announced that 100% of the workforce in non-essential businesses and services will be mandated to remain at home. The Governor will also impose strict rules for individuals in the groups most vulnerable to complications from COVID-19.
In a further effort to contain the spread of the COVID-19 outbreak, effective Saturday, March 21 at 8:00 p.m., Governor Andrew Cuomo has ordered personal care businesses closed and a reduction in on-site workers of at least 75% (to be increased to 100% effective Sunday, March 22 at 8:00 p.m.) for “non-essential” businesses. The full text of Executive Order 202.7 can be accessed here. In summary —
- In light of the fact that personal care services cannot be rendered while maintaining social distancing, barbershops, hair salons, tattoo or piercing parlors and related personal care services will be closed. This includes nail technicians, cosmetologists and estheticians, and the provision of electrolysis and laser hair removal services.
- Businesses and not-for-profit entities must reduce the in-person workforce by 75% as of Saturday, March 21, at 8:00 p.m.. These employers are all directed to use telecommuting or work from home procedures to the maximum extent possible. As noted above, this will be increased to 100%, expected to go into effect on Sunday, March 22, at 8:00 p.m. The Governor announced that there would be civil penalties for violations.
- As with Executive Order 202.6, businesses and entities providing “essential services or functions” are exempt from the workforce reduction mandate, including the following sectors:
- Health care operations, including research and laboratory services;
- Infrastructure, including utilities, telecommunication, airports and transportation infrastructure;
- Manufacturing, including food processing and pharmaceuticals;
- Retail, including grocery stores and pharmacies;
- Trash collection, mail, and shipping services;
- News media;
- Banks and related financial institutions;
- Providers of basic necessities to economically disadvantaged populations;
- Construction;
- Vendors needed to maintain the safety, sanitation and essential operations of residences or other essential businesses; and
- Vendors providing essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.
Pursuant to Executive Order 202.6, the Empire State Development Corporation (ESDC) has issued guidance providing more details as to what businesses, services and functions are essential, and accordingly exempted from the reduction in on-site workforce mandate.[1] This guidance is broken down by the categories listed in the order, and can be accessed at this link.
Essential healthcare operations include:
- research and laboratory services;
- hospitals;
- walk-in-care health facilities;
- veterinary and animal health services;
- elder care;
- medical wholesale and distribution;
- home health care workers or aides;
- doctor and dentist offices;
- nursing homes, or residential health care facilities or congregate care facilities; and
- medical supplies and equipment providers.
Essential Infrastructure includes:
- utilities including power generation, fuel supply and transmission;
- public water and wastewater;
- telecommunications and data centers;
- airports/airlines; and
- transportation infrastructure such as bus, rail, or for-hire vehicles, garages.
Essential manufacturing includes:
- food processing, including all foods and beverages;
- chemicals;
- medical equipment/instruments;
- pharmaceuticals;
- safety and sanitary products;
- telecommunications;
- microelectronics/semi-conductor;
- agriculture/farms; and
- paper products.
Essential retail includes:
- grocery stores including all food and beverage stores;
- pharmacies;
- convenience stores;
- farmer’s markets;
- gas stations;
- restaurants/bars (but only for take-out/delivery); and
- hardware and building material stores.
Essential services include:
- trash and recycling collection, processing and disposal;
- mail and shipping services;
- laundromats/dry cleaning;
- building cleaning and maintenance;
- child care services;
- auto repair;
- warehouse/distribution and fulfillment;
- funeral homes, crematoriums and cemeteries;
- storage for essential businesses; and
- animal shelters or animal care or management.
Financial institutions include:
- banks;
- insurance;
- payroll; and
- accounting.
Providers of basic necessities to economically disadvantaged populations include:
- homeless shelters and congregate care facilities;
- food banks; and
- 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.
Construction[2] includes:
- skilled trades such as electricians, plumbers; and
- other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
Defense includes:
- defense and natural security-related operations supporting the U.S. Government or a contractor to the US government.
Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses include:
- law enforcement;
- fire prevention and response;
- building code enforcement;
- security;
- emergency management and response;
- building cleaners or janitors;
- general maintenance whether employed by the entity directly or a vendor;
- automotive repair;
- disinfection; and
- doormen.
Vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public include:
- logistics;
- technology support;
- child care programs and services;
- government owned or leased buildings; and
- essential government services.
Businesses may request an opinion from the ESDC to be deemed essential. The guidance provides that only businesses not covered by the above list may make such a request. The request form may be accessed here.
The ESDC guidance notes that businesses that have only a single occupant/employee are deemed exempt from the mandate to reduce on-site workforce. ESDC further states that those businesses previously ordered closed, such as bars, restaurants and gyms, are not eligible for designation as an essential business.
- For individuals over the age of 70, those who have compromised immune systems and those with underlying illnesses, the governor is directing even more stringent protocols, including pre-screening of visitors and aids by taking their temperature, not visiting households with multiple people, wearing a mask when in the company of others, not taking public transportation unless the matter is urgent and absolutely necessary, and having others where masks when in the presence of vulnerable individuals.
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:
- Executive Order 202.4 – COVID-19: Reduction in Workforce By Municipalities
- Open Meetings Law Considerations in Light of COVID-19
- Updates From Governor’s March 16, 2020 Press Conference
- Governor’s Executive Order Prohibits Municipalities from Unilaterally Issuing Emergency Orders in Response to COVID-19 Outbreak
- President Trump Signs Families First Coronavirus Response Act
- New York Enacts Law Providing Job Protection and Pay for New Yorkers Quarantined as a Result of COVID-19
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 or Lance H. Klein and on general municipal issues contact Nicholas M. Ward-Willis or any other attorney in our Public Law Sector Practice Group.
[1] The guidance does not elaborate with regard to the news media.
[2] The guidance does not make clear if permitted construction work includes all construction or only that related to maintaining essential functions and services.
