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March 20, 2020

FROM: Steven Davi

Steven N. Davi

Executive Director and General Counsel

Governor Cuomo At-Work Mandate Exempts Construction

As we advised yesterday afternoon, Governor Cuomo signed Executive Order 202.6 on Wednesday evening, March 18, requiring all New York State businesses and non-profit organizations, with the important exception of those that provide “essential” services, such as “construction” and/or “essential infrastructure including utilities, telecommunication, airports and transportation infrastructure,” to reduce their in-person workforce by fifty (50%) percent by today, March 20, at 8 p.m.

 As we also advised, in a press conference yesterday morning, March 19, the governor called for increasing the restrictions set forth in Executive Order No. 202.6 by mandating employers, with the exception of “essential” businesses and entities, to reduce their in-person workforce by seventy-five (75%) percent.

 Accordingly, last night, by Executive Order No. 202.7, the governor formally modified Executive Order No. 202.6, as follows:

 

 (i)                  by requiring, effective March 21, 2020, at 8 p.m., and until further notice, all businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize, and shall reduce the in-person workforce at any work locations by seventy-five (75%) percent no later than March 21 at 8 p.m., and 

(ii)                 by continuing to exclude and exempt from the above in-person workplace restrictions any “essential business or entity providing essential services or functions.”   

 

In or around the same time last night, the New York Empire State Development Corporation d/b/a Empire State Development published Interpretive Guidance for determining whether a business enterprise is “essential,” and thus, excluded and exempt from the seventy-five (75%) percent workforce reduction set forth in Executive Order 202.6, as modified.

 In pertinent part, the Interpretive Guidance reiterates that “essential businesses or entities, including any for profit or non-profit, regardless of the nature of the service, the function they perform, or its corporate or entity structure, are not subject to the in-person restriction” set forth in Executive Order 202.6, as modified.  Moreover, the Interpretive Guidance provides an itemized listing of the “essential businesses or entities” that are excluded and exempt from the seventy-five (75%) percent workforce reduction set forth in Executive Order 202.6, as modified.  Of critical importance, the Interpretive Guidance makes clear that “construction[,] including [i] skilled trades such as electricians, plumbers, and [ii] other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes,” is an essential business or entity that is excluded and exempt from the seventy-five (75%) percent workforce reduction set forth in Executive Order 202.6, as modified. 

A fair reading of the Interpretive Guidance is that it will exclude and exempt from the seventy-five (75%) percent workforce reduction set forth in Executive Order 202.6, as modified, all Allied members insofar as each of you are engaged in construction, as this term is commonly understood, and utilize skilled trades. 

Please feel free to contact Steve Davi directly if you have any questions or wish to discuss any of the above.

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