Seyfarth Synopsis:  On March 18, 2020, Governor Cuomo issued Executive Order 202.6 (“EO 202.6) that, among other things, required non-essential businesses to reduce their in-person workforce at any work location by 50%.  EO 202.6 provided some detail about what qualifies as an “essential business,” with further guidance expected to be issued by the Empire State Development Corporation by 5:00 pm today, March 19, 2020.  Then, essentially just overnight, on the morning of March 19th, Governor Cuomo announced during a press conference that another Executive Order would be issued at some point today (which has not yet happened as of this writing) that would, among other things, increase the reduction of the in-person workforce to 75% for non-essential businesses.     

EO 202.6 instructs all “businesses and not-for-profit entities” to maximize any telecommuting or work from home procedures that can safely be utilized.  It also mandates that every non-essential business “reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m.”  (As Governor Cuomo announced this morning, the reduction level will be increased to 75% in another Executive Order expected to be released later today).  Only an “essential business or entity providing essential services or functions” is not subject to the reduction restriction.

EO 202.6 states that the definition of an essential business “includes”:

• essential health care operations including research and laboratory services;
• essential infrastructure including utilities, telecommunication, airports and transportation infrastructure;
• essential manufacturing, including food processing and pharmaceuticals;
• essential retail 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 economically disadvantaged populations;
• construction;
• 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, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public.

EO 202.6 also provides that any other business may be deemed “essential” after requesting an opinion from the Empire State Development Corporation, which shall review and grant such request, should it determine that it is in the “best interest of the state to have the workforce continue at full capacity in order to properly respond to this disaster.”  There is no requirement as to how quickly that response must be issued.  However, the Empire State Development Corporation is required to issue further guidance as to which businesses are to be determined essential by 5 p.m. on March 19, 2020.  Their website can be found here.

EO 202.6 is in effect until April 17, 2020.

Employer Takeaways:

Employers should pay attention to further guidance on what qualifies as an essential business, assess whether they qualify, and prepare to reduce in-person workforces by at least 50% by 5 pm tomorrow, March 20th ­– and by 75% by the date established by the next Executive Order, if they do not. Seeking to be deemed essential by the Empire State Development Corporation is an option.