The laws are changing rapidly in the current pandemic/crisis. Therefore, the legal issues discussed here are subject to constant change. It is best to consult with your counsel concerning any specific legal advice you may have.
The Governors of New York, New Jersey, and Connecticut have all issued executive orders shuttering non-essential businesses to address the COVID-19 situation, but their approaches are slightly different. All, however require employees to telecommute, if possible, or otherwise remain home.
New York: On March 20, 2020 New York’s Governor Cuomo directed businesses to keep 100% of their workforce home, either telecommuting or not working, beginning Sunday, March 22 at 8 PM, and lasting until April 19, 2020, unless they provided essential services. While the order affected many businesses who continue to struggle through these times, others were excluded from the requirements and are not subject to the work restriction.
The list of “essential businesses” that may remain open in New York is long and includes, among others:
- Health care (hospitals, nursing homes, walk-in clinics, doctor’s offices (although dentists may only provide emergency care));
- Infrastructure (utilities (water, electric), transportation infrastructure such as bus, rail, or for-hire vehicles, garages; technology support for online services);
- Essential Manufacturing (food processing, medical supplies and equipment manufacturers and providers; pharmaceuticals, sanitary products, household paper products);
- Essential Retail (grocery stores including all food and beverage stores; pharmacies; convenience stores; farmer’s markets; gas stations; hardware and building material stores);
- Essential Services (trash and recycling collection, processing and disposal; mail and shipping services; laundromats; building cleaning and maintenance; auto repair; warehouse/distribution and fulfillment);
- Financial Services (banks, insurance companies, payroll and accounting services);
- Construction/repair (construction-industry related businesses including skilled trades such as electricians and plumbers; professionals for essential infrastructure or for emergency repair and safety purposes).
The full list can be viewed here.
Businesses who believe they provide essential services or functions may request an “essential business” designation, here.
Additionally, New York’s Governor Cuomo also signed into law a set of sick leave protections for COVID-19-related leaves, effective immediately. To be eligible for the leave, employees must be subject to a mandatory or precautionary COVID-19-related order of quarantine or isolation issued by any government entity authorized to enter such orders. Employees can receive leave for as long as the quarantine or isolation lasts, but only from 0-14 days of the leave need be paid days (depending on the size of the business). The remaining leave is unpaid, which can be covered by disability or paid family leave insurance benefits.
This sick leave is in addition to any existing sick leave or paid time off provided by the business. The disability benefits are available immediately, without a waiting period.
New Jersey: New Jersey’s Governor Murphy’s March 21, 2020, “Stay at Home” Executive Order effective March 21, 2020 at 9 p.m., directs the closure of brick-and-mortar non-essential retail businesses for as long as the Order remains in effect. Essential retail businesses permitted to remain open must accommodate on-line or phone ordering, and provide pick-up services outside or adjacent to their stores. They must also practice “social distancing” with employees at work.
The New Jersey list of essential retail businesses is similar to New York’s, and can be found here.
Retail businesses or operations that have not been identified as essential may submit a request to the State Director of Emergency Management, who is the Superintendent of State Police.
Connecticut: Connecticut’s Governor issued an Executive Order on March 20, 2020, which goes into effect on March 23, 2020 at 8:00 p.m. and lasts until April 22, 2020, unless modified. It requires non-essential businesses and non-profits to reduce their on-site employees by 100% and have everyone telecommute, where possible. Essential businesses are exempt, however employees of essential businesses whose duties are not critical to essential business operations are advised to telecommute. Clarification on what is an “essential business” is yet to be issued. Current guidance includes many businesses on the New York list. Information regarding the Executive Order may be viewed here.
Employers are facing many challenges during these interesting times. Laws regarding treatment of your employees seem to change on a daily basis. Please feel free to reach out to us if you have questions about how to be navigate this situation going forward, or about how the multiple new laws apply to your business.