On March 18, 2020, Governor Cuomo issued Executive Order 202.6 (EO 202.6), the latest in a series of executive orders suspending and modifying state laws as a result of the COVID-19 “disaster emergency.” EO 202.6 provides that no more than 50% of a non-essential business’ workforce may report to a work location outside the home. However, on March 19, 2020 Governor Cuomo announced an updated mandate requiring that no more than 25% of a non-essential business’ workforce may report to the work place. An updated executive order has not issued yet, but we will continue to provide real time updates as they become available.

Non-essential businesses are directed to permit employees to telecommute or work from home to the extent possible.

The only businesses deemed “essential” include:

  • Essential health care operations including laboratory and research services;
  • Essential infrastructure operations, like utilities, transportation, telecommunication and airports;
  • Essential manufacturing operations, including food and pharmaceutical processing;
  • Essential retail stores including grocery stores and pharmacies;
  • Essential services including trash collection, mail and shipping services;
  • News media;
  • Banks and related financial institutions;
  • Providers of basic necessities to the economically disadvantaged;
  • Construction companies;
  • Vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses;
  • Vendors that provide essential services or products, like technology support, child care and services that ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

If your business is not on this list, or it is unclear whether it fits within one of these categories, you may request an opinion from the Empire State Development Corporation (ESDC) as to whether your business may be considered essential. ESDC will review and grant the request if it determines “that it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond” to the COVID-19 pandemic.

ESDC has been directed to respond to any requests for an opinion no later than 5 p.m. today, March 19th, making it critical for businesses to request an opinion immediately.

If you need assistance in interpreting EO 202.6 or requesting an opinion of ESDC, contact Jessica M. Baquet, the Chair of our Labor and Employment practice group, at (516) 393-8292 or jbaquet@jaspanllp.com.