Guidance on Essential versus Non-Essential Businesses – Updated

Updated Guidance on Essential versus Non-Essential Businesses

Governor Cuomo issued an Executive Order mandating that each employer in New York State shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m.

The Executive Order provides that essential business or entities providing essential services or functions shall not be subject to the in-person restrictions. Furthermore, an entity providing essential services or functions whether to an essential business or a non-essential business shall not be subjected to the in-person work restriction, but may operate at the level necessary to provide such service or function.

What businesses are essential?

The Empire State Development Corporation, at the request of Governor Cuomo, created a detailed list containing 12 categories of Essential Businesses/Services which are exempt from the workforce reduction order. Such list includes Health Care workers, infrastructure, manufacturing and more. See below for the complete list from the Empire State Development Corporation.

On March 30, 2020, Executive Order 202.13 was issued to clarify those construction projects deemed to be essential verses non-essential. The Executive Order also authorized the Empire State Development Corporation to determine which construction projects are deemed essential and are therefore exempt from the in-person workforce prohibitions.

What is the penalty for violating the Executive Order?

Any business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law, which could include a fine anywhere between $2,000 and $10,000 for each violation.

What if my business is not listed as essential?

The Empire State Development Corporation has developed an application process to request a designation as an essential business.

There are two restrictions on requesting designation as an essential business:

  • 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 on Monday, March 15, 2020 under the 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, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business for purposes of this guidance.

To apply for designation as an essential business, visit the Empire Development Corporation website here: here

For answers to frequently asked questions, click here: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf

 

For purposes of Executive Order 202.6, the Empire State Development Corporation has updated its guidelines regarding essential v. non-essential businesses.

“Essential Business,” means:

  1. Essential health care operations including
  • research and laboratory services
  • hospitals
  • walk-in-care health clinics and facilities
  • emergency veterinary, livestock services
  • senior/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
  • medical supplies and equipment manufacturers and providers
  • licensed mental health providers
  • licensed substance abuse treatment providers
  • medical billing support personnel
  1. Essential infrastructure including
  • public and private utilities including but not limited to power generation, fuel supply and transmission
  • public water and wastewater
  • telecommunications and data centers
  • airports/airlines
  • commercial shipping vessels/ports and seaports
  • transportation infrastructure such as bus, rail, for-hire vehicles, garages
  • hotels, and places of accommodation
  1. Essential manufacturing including
  • food processing, manufacturing agents, including all foods and beverages
  • chemicals
  • medical equipment/instruments
  • pharmaceuticals
  • sanitary products including personal care products regulated by the Food and Drug Administration
  • telecommunications
  • microelectronics/semi-conductor
  • food-producing agriculture/farms
  • household paper products
  • defense industry and the transportation infrastructure
  1. Essential retail including
  • grocery stores including all food and beverage stores
  • pharmacies
  • convenience stores
  • farmer’s markets
  • gas stations
  • restaurants/bars (but only for take-out/delivery)
  • hardware, appliance and building material stores
  • pet food
  1. Essential services including
  • trash and recycling collection, processing and disposal
  • mail and shipping services
  • laundromats and other clothing/fabric cleaning services
  • building cleaning and maintenance
  • child care services
  • bicycle repair
  • auto repair
  • automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
  • warehouse/distribution and fulfillment
  • funeral homes, crematoriums and cemeteries
  • storage for essential businesses
  • maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
  • animal shelters/ and animal care
  1. News media
  2. Financial Institutions including
  • banks or lending institution
  • insurance
  • payroll
  • accounting
  • services related to financial markets
  1. Providers of basic necessities to economically disadvantaged populations including
  • homeless shelters and congregate care facilities
  • food banks
  • 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
  1. Construction
  • All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
  • Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
  • For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.
  1. Defense
  • defense and national security-related operations supporting the U.S. Government or a contractor to the US government
  1. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including
  • law enforcement, including corrections and community supervision
  • fire prevention and response
  • building code enforcement
  • security
  • emergency management and response, EMS and 911 dispatch
  • building cleaners or janitors
  • general maintenance whether employed by the entity directly or a vendor
  • automotive repair
  • disinfection
  • residential moving services
  1. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:
  • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services
  • any personnel necessary for on-line or distance learning or classes delivered via remote means

 

 

Governor Cuomo issued an Executive Order mandating that each employer in New York State shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m.

The Executive Order provides that essential business or entities providing essential services or functions shall not be subject to the in-person restrictions. Furthermore, an entity providing essential services or functions whether to an essential business or a non-essential business shall not be subjected to the in-person work restriction, but may operate at the level necessary to provide such service or function.

What businesses are essential?

The Empire State Development Corporation, at the request of Governor Cuomo, created a detailed list containing 12 categories of Essential Businesses/Services which are exempt from the workforce reduction order. Such list includes Health Care workers, infrastructure, manufacturing and more. See below for the complete list from the Empire State Development Corporation.

What is the penalty for violating the Executive Order?

Any business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law, which could include a fine anywhere between $2,000 and $10,000 for each violation.

What if my business is not listed as essential?

The Empire State Development Corporation has developed an application process to request a designation as an essential business.

There are two restrictions on requesting designation as an essential business:

  • 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 on Monday, March 15, 2020 under the 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, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business for purposes of this guidance.

To apply for designation as an essential business, visit the Empire Development Corporation website here: https://esd.ny.gov/content/request-designation-essential-business-purposes-executive-order-2026?utm_campaign=Membership&utm_source=hs_email&utm_medium=email&utm_content=85123501&_hsenc=p2ANqtz-8O0yVK8VWuBm3Y97-7nZ6g-KI-IrTHeUDOgcGp9mTRaMqW-nuIWJlCaE1vaIrGLxAAPi6CzEHbua98yGtCgAuQFblM0g&_hsmi=85123501

For answers to frequently asked questions, click here: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf

 

For purposes of Executive Order 202.6, “Essential Business,” means:

  1. Essential Health Care Operations, Including:
  • research and laboratory services
  • hospitals
  • walk-in-care health facilities
  • emergency veterinary and livestock 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
  • medical supplies and equipment manufacturers and providers
  1. 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, garages
  • hotels, and places of accommodation
  1. Essential Manufacturing, Including:
  • food processing, manufacturing agents, including all foods and beverages
  • chemicals
  • medical equipment/instruments
  • pharmaceuticals
  • sanitary products
  • telecommunications
  • microelectronics/semi-conductor
  • agriculture/farms
  • household paper products
  1. Essential Retail, Including:
  • grocery stores including all food and beverage stores
  • pharmacies
  • convenience stores
  • farmer’s markets
  • gas stations
  • restaurants/bars (but only for take-out/delivery)
  • hardware and building material stores
  1. 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
  • animal shelters
  1. News Media
  2. Financial Institutions, Including:
  • banks
  • insurance
  • payroll
  • accounting
  • services related to financial markets
  1. Providers of Basic Necessities to Economically Disadvantaged Populations, Including:
  • homeless shelters and congregate care facilities
  • food banks
  • 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
  1. Construction, Including:
  • skilled trades such as electricians, plumbers
  • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
  1. Defense
  • defense and national security-related operations supporting the U.S. Government or a contractor to the US government
  1. 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
  • disinfection
  1. Vendors that Provide Essential Services or Products, Including Logistics and Technology Support, Child Care and Services:
  • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services

 

 

Erin M. Tyreman

For more information contact Erin M. Tyreman.