Guidance from PHCC LI Counsel on Executive Order 202.6

Posted March 31, 2020

ABILITY TO DO BUSINESS IN LIGHT OF NEW YORK STATE’S RECENT GUIDANCE AS TO “ESSENTIAL BUSINESS” REGARDING EXECUTIVE ORDER 202.6 ENTITLED “CONTINUING TEMPORARY SUSPENSION AND MODIFICATION OF LAWS RELATING TO THE DISASTER EMERGENCY.”
 
A Message from PHCC LI Counsel, Patrick Sullivan
 
I have reviewed Governor Cuomo’s March 18, 2020 Executive Order 202.6 and its amendments and subsequent guidance issued with respect to interpreting it in good faith to determine to what extent it applies to PHCCLI members. There were several items listed in the “essential business” exception to the original Executive Order 202.6 regarding 100% reduction in workforce that I believed could encompass the work done by our members. They included the following:
 
a. essential infrastructure including utilities, telecommunication, airports and transportation infrastructure;
 
b. construction;
 
c. vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; and
 
d. vendors that provide essential services or products . . . [that] provide for the health, safety and welfare of the public.
 
On March 27, 2020, the Governor’s office issued new guidance that substantially limited the construction exception. While the recent “guidance” provided by the state has a big impact on (b) above (construction) [aside from the exceptions listed in that guidance, i.e., emergency construction, essential construction (roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters)], I don’t think it affects, or is intended to affect, the other exceptions of:
 
(a) essential infrastructure, including utilities …
 
(c) essential services necessary to maintain safety, sanitation and essential operations of residences or essential businesses; or
 
(d) essential services or products that provide for health, safety and welfare of the public. 
 
So, while new construction other than the exceptions mentioned above cannot be continued at this time (except, presumably, for the time necessary to shut down the project safely), much of the work that members do such as heating, cooling, drains, leak repairs, toilet and sink repairs, etc. would seem to still be permissible under Executive Order 202.6 and the subsequent guidance with respect thereto.
 
Some PHCCLI members have the additional protection of another part of the guidance that states: “For purposes of this section construction work does not include a single worker, who is the sole employee/worker on a job site.”
 
It’s important to remember that, even assuming that any such work can permissibly continue, the guidance also provides that “At every site, if essential or emergency non-essential construction, this includes maintaining social distance, including for purposes of elevators/meals/entry and exit.” 
 
With respect to office staffing, while it could be argued that even though plumbers and technicians in the field perform essential services, the office staff at a plumbing company does not and thus might be subject to the Executive Order, the terms of the Executive Order do not seem to require that a determination be made on a person-by-person or department-by-department basis. Instead, companies such as PHCCLI members that, as a whole, provide these essential services appear to be exempt in full.
 
Of course, all members are free to take additional steps, and all persons should follow guidelines provided by government sources and health care providers about ways to prevent contracting and spreading the disease.
 
This statement is meant to serve as a resource or interpretation of the Executive Order and the subsequent guidance issued with respect thereto. It is not intended to be, and should not be interpreted to be, legal advice. Legal services can only be provided after an attorney-client relationship has been established and specific facts for which legal advice is sought are conveyed to an attorney. It is also not intended to serve as guidance with respect to specific employee issues such as employees who refuse to come to work based on fears of becoming infected (and concerns about liability arising therefrom), employees who may be request to be or who may be involuntarily furloughed, or other fact-specific issues, nor can it substitute for a PHCCLI member’s judgment and risk management decisions.