Guidance on Essential versus Non-Essential Businesses – Updated

Updated Guidance on Essential versus Non-Essential Businesses

Governor Cuomo issued an Executive Order mandating that each employer in New York State shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m.

The Executive Order provides that essential business or entities providing essential services or functions shall not be subject to the in-person restrictions. Furthermore, an entity providing essential services or functions whether to an essential business or a non-essential business shall not be subjected to the in-person work restriction, but may operate at the level necessary to provide such service or function.

What businesses are essential?

The Empire State Development Corporation, at the request of Governor Cuomo, created a detailed list containing 12 categories of Essential Businesses/Services which are exempt from the workforce reduction order. Such list includes Health Care workers, infrastructure, manufacturing and more. See below for the complete list from the Empire State Development Corporation.

On March 30, 2020, Executive Order 202.13 was issued to clarify those construction projects deemed to be essential verses non-essential. The Executive Order also authorized the Empire State Development Corporation to determine which construction projects are deemed essential and are therefore exempt from the in-person workforce prohibitions.

What is the penalty for violating the Executive Order?

Any business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law, which could include a fine anywhere between $2,000 and $10,000 for each violation.

What if my business is not listed as essential?

The Empire State Development Corporation has developed an application process to request a designation as an essential business.

There are two restrictions on requesting designation as an essential business:

Any business that only has a single occupant/employee (i.e. gas station) has been deemed exempt and need not submit a request to be designated as an essential business.
Businesses ordered to close on Monday, March 15, 2020 under the restrictions on any gathering with 50 or more participants, including but not limited to, bars, restaurants, gyms, movie theaters, casinos, auditoriums, concerts, conferences, worship services, sporting events, and physical fitness centers, are presumed to be compliant with NYS issued restrictions and must remain closed and are not eligible for designation as an essential business for purposes of this guidance.

To apply for designation as an essential business, visit the Empire Development Corporation website here: here

For answers to frequently asked questions, click here: https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_032220.pdf

For purposes of Executive Order 202.6, the Empire State Development Corporation has updated its guidelines regarding essential v. non-essential businesses.

“Essential Business,” means:

Essential health care operations including

research and laboratory services
hospitals
walk-in-care health clinics and facilities
emergency veterinary, livestock services
senior/elder care
medical wholesale and distribution
home health care workers or aides for the elderly
doctor and emergency dental
nursing homes, or residential health care facilities or congregate care facilities
medical supplies and equipment manufacturers and providers
licensed mental health providers
licensed substance abuse treatment providers
medical billing support personnel

Essential infrastructure including

public and private utilities including but not limited to power generation, fuel supply and transmission
public water and wastewater
telecommunications and data centers
airports/airlines
commercial shipping vessels/ports and seaports
transportation infrastructure such as bus, rail, for-hire vehicles, garages
hotels, and places of accommodation

Essential manufacturing including

food processing, manufacturing agents, including all foods and beverages
chemicals
medical equipment/instruments
pharmaceuticals
sanitary products including personal care products regulated by the Food and Drug Administration
telecommunications
microelectronics/semi-conductor
food-producing agriculture/farms
household paper products
defense industry and the transportation infrastructure

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, appliance and building material stores
pet food

Essential services including

trash and recycling collection, processing and disposal
mail and shipping services
laundromats and other clothing/fabric cleaning services
building cleaning and maintenance
child care services
bicycle repair
auto repair
automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
warehouse/distribution and fulfillment
funeral homes, crematoriums and cemeteries
storage for essential businesses
maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
animal shelters/ and animal care

News media
Financial Institutions including

banks or lending institution
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

All non-essential construction must shut down except emergency construction, (e.g. a project necessary to protect health and safety of the occupants, or to continue a project if it would be unsafe to allow to remain undone until it is safe to shut the site).
Essential construction may continue and includes roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters. At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit. Sites that cannot maintain distance and safety best practices must close and enforcement will be provided by the state in coordination with the city/local governments. This will include fines of up to $10,000 per violation.
For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.

Defense

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

Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including

law enforcement, including corrections and community supervision
fire prevention and response
building code enforcement
security
emergency management and response, EMS and 911 dispatch
building cleaners or janitors
general maintenance whether employed by the entity directly or a vendor
automotive repair
disinfection
residential moving services

Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:

logistics
technology support for online services
child care programs and services
government owned or leased buildings
essential government services
any personnel necessary for on-line or distance learning or classes delivered via remote means