As many of you know, the New York Empire State Development Corporation d/b/a Empire State Development published amended Interpretive Guidance today for determining whether a business enterprise is “essential,” and thus, excluded and exempt from the one-hundred (100%) percent in-person workforce reduction mandate set forth in Executive Order 202.6, as modified.  

The Interpretive Guidance, as amended, significantly modifies and narrows the scope of construction that is now considered “essential,” and thus, may continue to operate despite the governor’s 100% in-person workforce reduction mandate. 

In essence, the Interpretive Guidance seems to separate construction work into four distinct categories, as follows

1. “Essential construction” may continue to operate.  This includes “roads, bridges, transit facilities, utilities, hospitals or health care facilities, affordable housing, and homeless shelters;” provided, however, that social distancing can be maintained, “including for purposes of elevators/meals/entry and exit.”
2. “Emergency non-essential” construction also may continue to operate on an interim basis “until it is safe to shut the site.”  This includes “projects necessary to protect health and safety of [building] occupants, or … [that must be] continue[d] … if it would be unsafe to allow [the project] to remain undone[,] until it is safe to shut the site;” provided, however, that social distancing can be maintained, “including for purposes of elevators/meals/entry and exit.”
3. Construction work involving “a single worker, who is the sole employee/worker on a job site,” also may continue to operate.
4. Non-emergency non-essential construction may not continue to operate and must be shut down.

Please be aware that “essential construction” sites and “emergency non-essential” construction sites that cannot maintain recommended “social distanc[ing] and safety best practices” will be subject to closure and fines of up to $10,000 per violation by the state in coordination with city and local governments.

The Interpretive Guidance by its express terms does not indicate an effective date.  However, since the Interpretive Guidance is intended to modify and amend Executive Order 202.6, as amended, which is already in effect, it can only be presumed the Interpretive Guidance is meant to take effect immediately.

The Interpretive Guidance leaves a lot to be desired; it is certainly not the most artfully drafted piece of guidance we have ever seen come out of Albany.  We will continue to keep you apprised of any additional developments that may bring this flawed Interpretive Guidance into sharper focus.

In the meantime, please do not hesitate to contact me directly if you have any questions or wish to discuss.