On March 20, 2020, New York Gov. Andrew Cuomo became the third governor to enact a statewide “stay-at-home” order to combat the spread of COVID-19. The order, which went into effect at 8 p.m. on March 22, requires all “non-essential businesses” to close or transition entirely to telecommuting until at least April 19. Businesses that do stay open are directed to practice social distancing, and to allow employees to work from home wherever possible to minimize contact among employees.
Under the guidance issued by the Empire State Development Corporation (ESDC), the following 12 categories of businesses are considered “essential businesses” that may continue to operate:
- Essential healthcare operations, including research and laboratory services, hospitals, emergency veterinary and livestock services, walk-in healthcare facilities, emergency veterinary and animal health services, nursing homes, and medical supplies and equipment manufacturers and providers
- Essential infrastructure, such as utilities, transportation, hotels, airports/airlines and telecommunications providers
- Essential manufacturing, including food processing, chemicals, pharmaceuticals, sanitary products, agriculture, household paper products and microelectronics
- Essential retail, such as grocery stores, pharmacies, convenience stores, gas stations, restaurants and bars (for takeout/delivery only) and hardware stores
- Essential services, including laundromats, auto repair, trash and recycling services, mail and shipping services, child care, funeral homes, animal shelters and storage for essential businesses
- News media
- Financial institutions, including services related to financial markets
- Providers of basic necessities to economically disadvantaged populations, such as homeless shelters, food banks and other service providers caring for patients in state-licensed or -funded voluntary programs
- Construction, including trades such as electricians and plumbers
- Essential services for maintaining safety, sanitation and essential operations of residences or other essential businesses, such as security, law enforcement, building code enforcement, disinfection and emergency management and response
- Vendors that provide essential services or products, such as logistics, technology support, child care or essential government services
The governor’s order also provides that entities that provide essential services or functions to other essential or non-essential businesses may continue to operate. The ESDC guidance further notes that, if a particular business provides both essential and non-essential services, only the essential business operations are exempt from the closure order.
Businesses that do not fall into one of the categories above can request designation as an essential business by completing this form. The ESDC has been directed to grant businesses’ requests to the extent it determines that it “is in the best interest of the state” to allow a particular business’ workforce to continue at full capacity. Businesses that do not comply with the order may be subject to civil fines and forced to close.
Beyond the short descriptions excerpted above, the governor’s office has provided little detail about which businesses within each sector are considered “essential” and which are not. However, Gov. Cuomo has reportedly stated that he intends to align New York’s closure rules with those of neighboring states, such as Connecticut and New Jersey, both of which enacted similar stay-at-home orders this weekend.
New York and other states very likely will provide additional clarity regarding which businesses and functions are essential as the week progresses. McGuireWoods will continue to monitor developments. If you have questions about how this order impacts your business, you can contact any of the McGuireWoods COVID-19 Response Team members listed below.
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.