Governor Cuomo Signs Executive Order Mandating All Non-Essential Businesses Close and Employees Work from Home

• New York
• Business

Governor Andrew Cuomo issued the New York State on PAUSE Executive Order (the “PAUSE Order”), including a directive requiring all non-essential for profit or non-profit businesses statewide to close their in-office personnel functions, effective Sunday March 22, 2020 at 8:00 pm. The PAUSE Order since has been extended a number of times. On May 14, 2020, Governor Cuomo further extended the PAUSE Order, by executive order, until Thursday May 28, 2020 at 11:29 pm; provided, however, the closure of all non-essential for profit or non-profit business shall no longer apply to certain businesses in selected industries in certain regions in New York, effective on May 15, 2020. These regions have met specific metrics established in the Governor’s plan for reopening state, known as the “NY Forward Reopening Plan,” which divides the state into ten different regions for reopening.

As of July 20, all regions have met the metrics required to begin Phase One (construction, agriculture, forestry, fishing and hunting, retail limited to curbside or in-store pickup or drop off, manufacturing and wholesale trade), Phase Two (office-based businesses, real estate, limited retail, vehicle sales, leases and rentals, retail rental, repair and cleaning, commercial building management, and hair salons and barbershops), Phase Three (restaurants/food services and personal care), and Phase Four (low-risk indoor and outdoor arts and entertainment, film and TV production, higher education and professional sports without fans) of the reopening plan. (Indoor dining does not reopen with phase 4 for New York City.). In addition, certain low-risk business and recreational activities have begun reopening statewide on May 15.

The Governor’s Office also issued guidance regarding which businesses or entities are essential for the purposes of the PAUSE Order. The following is a non-exhaustive list of entities designated to be essential:

1. Essential health care operations: including research and laboratory services; hospitals; walk-in-care health facilities; emergency veterinary and animal health services; elder care; medical wholesale and distribution; home health care workers or aides for the elderly; doctor and emergency dental; nursing homes, or residential health care facilities or congregate care facilities; and medical supplies and equipment providers.

2. Essential infrastructure: including utilities (including power generation, fuel supply and transmission); public water and wastewater; telecommunications and data centers; airports/airlines; transportation infrastructure such as bus, rail, or for-hire vehicles and garages; and hotels and places of accommodation.

3. Essential manufacturing: including food processing, manufacturing agents (including all foods and beverages); chemicals; medical equipment/instruments; pharmaceuticals; sanitary products; telecommunications; microelectronics/semi-conductor; agricultural/farms; and household paper products.

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 takeout/delivery); and hardware and building material stores.

5. Essential services: including trash and recycling collection, processing and disposal; mail and shipping services; laundromats; 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.

6. News media.

7. Financial institutions: including banks, insurance, payroll, accounting, and services related to financial markets.

8. Providers of basic necessities to economically disadvantaged populations: including 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.

9. Construction: including skilled trades such as electricians and plumbers, and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes.

10. 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 essential businesses: including 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, and disinfection.

12. Vendors that provide essential services or products: logistics and technology support, child care and services, including logistics, technology support for online services, child care programs and services, government owned or leased buildings, and essential government services.

Any other business not covered by the guidance may request a designation as an essential business from the Empire State Development Corporation. The Empire State Development Corporation will grant the request only if it determines that it is in the best interest of the State for the business to continue in-office personnel functions in order to properly respond to the COVID-19 emergency.

With respect to businesses or entities that operate or provide essential services, supplies, or support to either an essential business or non-essential business, those business or entities are exempt from the restrictions of the PAUSE Order, and may operate those lines and/or business operations necessary to support the essential services, supplies, or support.

Businesses and entities that provide other essential services must implement rules that help facilitate social distancing of at least six feet.

Any business that only has a single occupant/employee (i.e. gas station) has been deemed exempt and need not submit a request to be designated as an essential business.

Businesses ordered to close under separate restrictions on any gathering with 50 or more participants, including but not limited to bars, restaurants, gyms, movie theaters, casinos, auditoriums, concerts, conferences, worship services, sporting events, and physical fitness centers, must remain closed and are not eligible for designation as an essential business.

Any business violating the PAUSE Order shall be subject to enforcement and to the penalty provisions of Sections 12 and 12-b(2) of the Public Health Law, which include civil penalties of up to $2,000 for each violation and criminal penalties of up to $2,000 for each willful violation. The Commissioner of Health is also authorized to issue emergency regulations that are also subject to enforcement. (Any individual violating the social distancing and gathering restrictions of the PAUSE Order shall be subject to civil penalties up to $1,000 for each violation.)

Government or Lead Agency

The Office of the New York State Governor and the Empire State Development Corporation

Dates Available

Effective Sunday March 22, 2020 at 8:00 p.m. through May 28, 2020 at 11:59 p.m., unless continued.

Contact for More Information

To apply for essential business designation, a business may fill out an application here: https://esd.ny.gov/sites/default/files/Request%20for%20Designation%20Form_0.pdf. The form is not currently available in other languages.

List of Additional Information

Further guidance for determining whether businesses, services, or personnel are essential is available here: https://esd.ny.gov/guidance-executive-order-2026. A FAQ is also available here.

The text of the PAUSE Order is available here. The text of the Executive Order extending the PAUSE Order is available here. The text of the Executive Order further extending the PAUSE Order to May 15 is available here. The text of the Executive Order further extending the PAUSE Order to May 28 is available here. The text of the NY Forward Reopening Plan is available here.

Sections 12 and 12-b(2) of the Public Health Law are available here:

https://www.nysenate.gov/legislation/laws/PBH/12;

https://www.nysenate.gov/legislation/laws/PBH/12-B.

More information is available on the Governor’s Office website here: https://www.governor.ny.gov/news/governor-cuomo-signs-new-york-state-pause-executive-order, and here: https://coronavirus.health.ny.gov/home.