COVID-19 Update: New York Requires Nonessential Employers to Send All Employees Home

Pursuant to an Executive Order signed by Gov. Andrew Cuomo titled New York State on PAUSE, effective at 8 p.m. on Sunday, March 22, all employers in New York State not deemed to be essential are required to cease having any employees report to work in person. The restriction remains in effect until further notice.

The Empire State Development Corp. (also known as the New York State Department of Economic Development) has provided guidance that expands upon and explains the categories of employers deemed to be “essential.” Among the changes, the guidance now states that businesses that provide “services related to financial markets” are essential businesses, and that hotels are considered to be essential infrastructure. The list of essential businesses includes:

• Essential health care operations
• Essential infrastructure including utilities, telecommunication, airports, transportation infrastructure and hotels
• Essential manufacturing including food processing and pharmaceuticals
• Essential retail including grocery stores, pharmacies, convenience stores and restaurants (but only for takeout and delivery)
• Essential services including trash collection, mail, shipping services and child care services
• News media  
• Financial institutions including banks, insurance, accounting and services related to financial markets
• Providers of basic necessities to economically disadvantaged populations
• Construction
• Defense and national security-related operations
• Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, such as security, building cleaning and janitorial service, general maintenance, and disinfection
• Vendors that provide essential services or products including logistics, technology support, and child care programs and services
• Any businesses that have only a single occupant/employee, such as gas stations

The restriction applies to both for- and not-for-profit entities. Houses of worship are not ordered to be closed, but are strongly recommended to not hold in-person services and to maintain social distancing. Similarly, businesses designated essential are strongly urged to maintain social distancing to the extent possible.

Businesses not designated essential in the guidance may request designation as an essential business using this form. 

Unanswered Questions

Employers that are not deemed essential — and that therefore are required to have no in-person employees working — may reasonably want a small number of employees to report to work for critical needs. For example, an employer may need a small number of on-premises security guards to ensure the protection of buildings and other assets, information technology workers to ensure computer networks stay online, or maintenance workers to ensure vacant buildings do not fall into disrepair. While the Executive Order is ambiguous in several respects, neither the Executive Order nor the guidance clearly authorizes non-essential employers to have such employees on-site. We expect additional guidance and will continue to provide updates as more information becomes available.

Gov. Cuomo has announced that employers that violate the closure order will be subject to financial penalties, but the Executive Order does not define what those penalties will be.