Substantial Changes to NY Essential Business Guidance

Major changes were made regarding what businesses are considered “essential”, through guidance issued April 9, 2020 by the Empire State Development Corporation.  New additions to the essential business list are identified below, along with a few business categories that were narrowed.  For the first time, the guidance also identified a specific list of the types of businesses that may not apply for essential designation.

Healthcare:

• Emergency chiropractic services
• Physical therapy, prescribed by medical professional
• Occupational therapy, prescribed by medical professional

Manufacturing:

• Automobiles
• Any parts or components necessary for essential products that are referenced within this guidance

Retail:

• Telecommunications to service existing customers and accounts
• Delivery for orders placed remotely via phone or online at non-essential retail establishments; provided, however, that only one employee is physically present at the business location to fulfill orders

Services:

• Bicycle repair
• Automotive sales conducted remotely or electronically, with in-person vehicle return and delivery by appointment only
• Marine vessel repair and marinas, but only to support government or essential commercial operations and not for recreational purposes
• Maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein [for essential business storage]
• Landscaping, but only for maintenance or pest control and not cosmetic purposes
• Designing, printing, publishing and signage companies to the extent that they support essential businesses or services
• Remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted

Financial institutions:

• Debt collection was carved out as not an essential business

Construction:

Essential construction may proceed, to the extent that:

• The construction is for, or your business supports, roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, homeless shelters, or public or private schools;
• The construction is for affordable housing, as defined as construction work where either (i) a minimum of 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority;
• The construction is necessary to protect the health and safety of occupants of a structure;
• The construction is necessary to continue a project if allowing the project to remain undone would be unsafe, provided that the construction must be shut down when it is safe to do so;
• The construction is for projects in the energy industry in accordance with Question No. 14 in the FAQ at:  https://esd.ny.gov/sites/default/files/ESD_EssentialEmployerFAQ_033120.pdf;
• The construction is for existing (i.e. currently underway) projects of an essential business; or
• The construction work is being completed by a single worker who is the sole employee/worker on the job site.

The Guidance for construction work also states that:

“At every site, it is required that the personnel working on the site maintain an appropriate social distance, including for purposes of elevators/meals/entry and exits.  Sites that cannot maintain appropriate social distancing, as well as cleaning/disinfecting protocols must close. Enforcement will be conducted by state and local governments, including fines up to $10,000 per violation. Construction may continue solely with respect to those employees that must be present at the business location/construction site in support of essential business activities. No other employees/personnel shall be permitted to work in-person at the business location/construction site.  Any other business activities being completed that are not essential are still subject to the restrictions provided by Executive Order 202.  As noted above, local governments, including municipalities and school districts, are allowed to continue construction projects at this time as government entities are exempt from these essential business restrictions. However, to the greatest extent possible, local governments should postpone any non-essential projects and only proceed with essential projects when they can implement appropriate social distancing and cleaning/disinfecting protocols. Essential projects should be considered those that have a nexus to health and safety of the building occupants or to support the broader essential services that are required to fulfill the critical operations of government or the emergency response to the COVID-19 public health crisis.”

New Category: Recreation

• Parks and other open public spaces, except playgrounds and other areas of congregation where social distancing cannot be abided
• However, golf courses are not essential
• However, use of boat launches and marinas for recreational vessels is not considered essential

New Category: Professional services (legal and real estate)

Lawyers may continue to perform all work necessary for any service so long as it is performed remotely.  Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.

Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).

Changes on Gatherings and Houses of Worship:

Pursuant to Executive Order 202.10, all non-essential gatherings of individuals of any size for any reasons (e.g. worship services, parties, celebrations, or other social events) are canceled or postponed. Congregate services within houses of worship are prohibited.  Houses of worship may only be used by individuals and only where appropriate social distancing of, at least, six feet between people can be maintained. Further, individuals should not gather in houses of worship, homes, or other locations for religious services until the end of this public health emergency. If possible, religious leaders should consider alternative forms of worship, replacing in-person gatherings with virtual services, such as phone or conference calls, videoconference calls, or online streaming.

Restrictions on requesting designation as an essential business:

Pursuant to the Governor’s Executive Orders, the following businesses are specifically enumerated as non-essential and are, therefore, unable to request a designation:

• Any large gathering or event venues, including but not limited to establishments that host concerts, conferences, or other in-person performances or presentations in front of an in-person audience;
• Any dine-in or on-premise restaurant or bar service, excluding take-out or delivery for off-premise consumption;
• Any facility authorized to conduct video lottery gaming or casino gaming;
• Any gym, fitness centers, or exercise classes, except the remote or streaming service noted above;
• Any movie theater;
• Any indoor common portions of retail shopping malls with 100,000 or more square feet of retail space available for lease;
• All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions; and
• Any barbershops, hair salons, tattoo or piercing parlors and related personal care services, including nail technicians, cosmetologists and estheticians, and the provision of electrolysis, laser hair removal services.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice.  For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.