How Coronavirus Government Mandates Impact Your Business

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In the past several weeks the impact of the COVID-19 pandemic has forced businesses throughout the world to drastically change the way they conduct business to ensure the safety of their workforce and to comply with the rapidly evolving laws that govern them. We appreciate the uncertainty of this moment. Our firm’s lawyers remain working and dedicated to help our clients navigate the complexity of the ever evolving and unprecedented business climate and legal landscape the current pandemic presents.

Closing of Non-Essential Business

Yesterday, Governor Cuomo signed the “New York State on Pause” Executive Order, which, among other things, requires all non-essential New York based businesses and not-for-profit organizations to close all in-office functions, effective as of 8:00 pm this Sunday through April 19^th.

The new Executive Order modifies a prior Executive Order signed by Governor Cuomo this week which required: (i) non-essential businesses and entities to reduce their workforce at their places of business by at least seventy five percent (75%); and (ii) to utilize a work-from-home arrangement to the maximum extent possible.

What Is Considered “Essential Business”

Businesses or entities which provide essential services or functions (an “Essential Business”) may continue in-office activities (but still must utilize a remote work-from-home arrangement where possible). Those businesses and organizations are as follows:

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
medical and emergency dental care
nursing homes, or residential health care facilities or congregate care facilities
medical supplies and equipment manufacturers and providers

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 accommodations

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

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

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

News Media

Financial Institutions, including:

banks
insurance
payroll
accounting
services related to financial markets

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

Construction, including:

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

Defense:

defense and natural security-related operations supporting the U.S. Government or a contractor to the U.S. Government

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

Vendors that Provide Essential Services or Products, Including Logistics and Technology Support, and Child Care Services :

logistics
technology support for online services
child care programs and services
government owned or leased buildings
essential government services

Applying for “Essential Business” Designation

In addition, businesses or organizations that are not technically classified within the scope of businesses summarized above, yet otherwise believe they qualify as an Essential Business, may apply to the Empire State Development Corporation for designation as an Essential Business. Further, businesses or organizations that support or provide goods or services to an otherwise Essential Business may obtain a limited exemption to the extent it supports the Essential Business. Our firm has assisted clients in the application process and have obtained favorable rulings on such exemption requests.

Workplace Safety Requirements

All businesses and organizations that continue operations in any capacity should continue to implement policies recommended by the Centers for Disease Control and Prevention (CDC) and required by federal and state law to protect the safety of their workforce, including the New York Department of Health. Those policies include ensuring employees working on-site respect “social distancing”, which is otherwise known as employees maintaining a physical distance of at least six (6) feet apart from each other, and ensuring the vigilant sanitation of all areas where employees are working.

Paid Leave Requirements

Finally, federal and state governments have acted quickly to enact laws to assist employees unable to work as a result of the COVID-19 pandemic. Specifically, the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) were enacted by the federal government this week. These new federal laws go in to effect April 2, 2020.

While a detailed analysis of the new laws is beyond the scope of this alert, the EFMLEA essentially requires all employers with less than 500 employees to provide paid leave to an employee (equal to two-thirds of an employee’s regular salary, subject to certain caps) that is unable to work due to the unavailability of child care during the COVID-19 pandemic. Pursuant to the EPSLA, employers with less than 500 employees must also provide paid sick leave if an employee is unable to work to the extent, among other things, he or she in quarantine, been advised to self-quarantine by a medical professional, diagnosed with COVID-19, or caring for a son or daughter as a result of COVID-19. Employers need to be aware of these laws and should take them into consideration when making decisions with an employee personally impacted by COVID-19.

Department of Labor Guidelines

The Wage and Hour Division of the U.S. Department of Labor has established an online resource page, which provides information to employers on common issues that arise when responding to COVID-19. The link below provides information regarding effects on wages and hours worked under the Fair Labor Standards Act (FSLA), job-protected leave under the Family and Medical Leave Act (FMLA), and paid sick leave and expanded family medical leave under the Families First Coronavirus Response Act (FFCRA). Click the following link for more information on the Department of Labor’s website:

U.S. Department of Labor: COVID-19 and the American Workplace

We appreciate the challenges your business or organization are contending with during these uncertain times. Our experienced team of lawyers continue to be available to assist you as needed and to advise you on the rapidly changing laws.