The New York State Department of Economic Development, doing business as Empire State Development ("Empire State Development"), has issued guidance on the Executive Order 202.6 definition of "essential business."
Businesses that were ordered to close on 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 New York State-issued restrictions, must remain closed, and are not eligible for designation as an essential business.
The guidance from Empire State Development is listed below. It provides that for purposes of Executive Order 202.6, “essential business” means businesses operating in or as:
1. 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
2. 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
3. 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
4. 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
5. Essential services, including:
- trash and recycling collection, processing and disposal
- mail and shipping services
- laundromats
- building cleaning and maintenance
- child care services
- automotive repair
- 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
6. News media
7. Financial institutions, including:
- banks or lending institutions
- insurance
- payroll
- accounting
- services related to financial markets
8. 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
9. Construction, including:
- skilled trades such as electricians, plumbers
- other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes
10. Defense
- 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 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
12. 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
Entities may request designation as an essential business if they are not listed above by visiting the Empire State Development website.
The guidance states that houses of worship are not ordered closed, but Empire State Development strongly recommends not holding congregate services. If held, social distance must be maintained and in compliance with New York State Department of Health guidance.
Please contact CCB Law if you need legal assistance in determining whether your business is essential.