Empire State Development Corporation Updates Guidance Regarding Definition of “Essential Businesses” Exempt From In-Person Workforce Reduction Requirements

March 25, 2020

This Alert updates our March 20, 2020 Alert regarding NY Executive Order 202.6 (as modified by 202.7 and 202.8) directing all non-essential businesses to close in-office personnel functions, and the Empire State Development Corporation’s guidance concerning “essential” businesses or services exempt from this in-person workforce restriction. Click here to view our prior Alert.

The Empire State Development Corporation has issued updated guidance in an effort to clarify which businesses or services qualify as “essential.” Essential businesses include the following:

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 institution
  • 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 US 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

With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the workforce reduction restrictions.

If the function of your business is not listed above, but you believe that it is essential or it is an entity providing essential services or functions, you may request designation as an essential business. Requests by businesses to be designated an essential function as described above, should only be made if they are NOT covered by the guidance.

  • Click here to request designation as an essential business.
  • Click here for the full, updated guidance published by the Empire State Development Corporation.
  • Click here for the answers to Frequently Asked Questions published by the Empire State Development Corporation.

For Guidance on cleaning and disinfection of facilities, refer to the New York State Department of Health Interim Guidance for Cleaning and Disinfection of Public and  Private Facilities for COVID -19 at: https://coronavirus.health.ny.gov/system/files/documents/2020/03/cleaning_guidance_general_building.pdf

For further information: New York State Department of Health’s COVID-19 Webpage: https://coronavirus.health.ny.gov/home

Center for Disease Control and Prevention Webpage: https://www.cdc.gov/coronavirus/2019-ncov/

Local health department contact information can be found at: https://www.health.ny.gov/contact/contact_information/index.htm


For more information on this issue or other employment matters, please contact:

Carol M. Goodman at +1 212 592 1465 or [email protected]
Jina Moon
at +1 212 592 1584 or [email protected]
Jared D. Newman at +1 212 592 5957 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman
at +1 212 592 1583 or [email protected]
Heather M. Zimmer
at +1 212 592 1477 or [email protected]

© 2020 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.