On-Site Workforce Restrictions for “Non-Essential” Businesses in New York State

This advisory was originally written on 3/20 and updated on 3/22 to reflect the revised interpretative guidance issued by the ESDC following the issuance of EO 202.8.

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In an effort to control the spread of the COVID-19 pandemic, New York Governor Andrew Cuomo has taken a series of steps to require businesses and other entities in New York State, both for-profit and not-for-profit (“businesses”), to reduce or eliminate their in-person workforces.

Executive Order 202.6 (“EO 202.6”) requires every business to utilize any telecommuting or work from home procedures that it can safely utilize. Every “non-essential” business must reduce its in-person workforce at each of its work locations by a specified percentage. Initially, a 50% reduction was required, effective at 8 P.M. on March 20, 2020. Executive Order 202.7 ("EO 202.7") changed the required reduction to 75%, effective one day later, at 8 P.M. on March 21, 2020.

Executive Order 202.8 ("EO 202.8", and together with EO 202.6 and EO 202.7, the "Executive Orders") changed the required reduction to 100% effective at 8 P.M. on March 22, 2020. Once EO 202.8 takes effect, all non-essential businesses will be required to operate without a physical workplace (i.e., with all personnel working from home) or close.

The Empire State Development Corporation (“ESDC”) issued interpretive guidance on the Executive Orders,[1] which focuses on clarifying which businesses are essential and thus exempt from the mandatory in-person workforce reductions. Essential businesses include:

1. Essential health care operations, including hospitals, research and laboratory services, elder care, doctor and emergency dental work, emergency veterinary and livestock services and medical supplies and equipment manufacturers and providers;
2. Essential Infrastructure, including power generation, fuel supply and transmission, public water and wastewater, airports/airlines, transportation infrastructure, hotels and places of accommodation and telecommunication data and centers;
3. Essential manufacturing, including food processing, manufacturing agents, chemicals, medical equipment/instruments, pharmaceuticals, sanitary products, agriculture/farms, and household paper products;
4. Essential retail, including grocery stores, pharmacies, convenience stores, farmer’s markets, gas stations, restaurants/bars (but only for take-out/delivery), and hardware and building material stores;
5. Essential services, including trash and recycling collection, processing and disposal, mail and shipping services, warehouse distribution and fulfillment, laundromats, child care services, automobile repair, funeral homes, crematoriums and cemeteries, storage for essential businesses and animal shelters;
6. News media;
7. Financial Institutions, including banks, insurance, payroll, accounting and services related to the financial markets;
8. Providers of basic necessities to economically disadvantaged populations, including homeless shelters, food banks and human services providers whose function includes the direct care of patients, the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities and those operating community shelters;
9. Construction, including skilled trades such as electricians and plumbers and other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes;
10. Defense, including defense and national security-related operations supporting the U.S. Government or a contractor to the U.S. government;
11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses, including law enforcement, fire prevention and response, security, emergency management and response, building cleaners or janitors and automative repair; and
12. Vendors that provide essential services or products, including logistics and technology support, child care and services, including logistics, technology support for online services, child care programs and services, and essential government services.

With respect to businesses that provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are essential or are necessary to support the essential services, supplies or support are exempt from the workforce reduction required by the Executive Order.

A business that is not classified as essential under the guidance, but believes that it should be considered essential, may file a request with the ESDC. (A copy of the ESDC form can be found here). Any business that has only a single occupant/employee is deemed to be exempt and need not submit a request to be designated as essential.

Houses of worship are not ordered closed, however the ESDC strongly recommends that no congregate services be held and social distancing be maintained. 

As New York State continues its efforts to limit the rapid increase in COVID-19 caseload, the rules governing business operations are changing on a daily and even hourly basis. Businesses should plan for the possibility of further changes in the rules governing their in-person workforce, including, possibly, changes in the scope of the exemption for “essential” businesses. The Carter Ledyard team is monitoring developments in this area and will issue updates as the situation evolves.

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[1] ESDC's interpretive guidance can be found here: https://esd.ny.gov/guidance-executive-order-2026.