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March 30, 2020

FROM: Steven Davi

Steven N. Davi

Executive Director and General Counsel

Governor Cuomo Issues Executive Order No. 202.13 re: Essential Construction

Earlier today Governor Cuomo signed Executive Order No. 202.13 , which, as it relates to “essential construction,” offers little in the way of substance, but rather appears to be aimed at cleaning up loose ends following a flurry of executive orders and related interpretive guidance coming down from Albany the past two weeks.

 First, Executive Order No. 202.13 grants the New York Empire State Development Corporation (“ESDC”) the formal authority, retroactive to March 27, to determine which construction projects are “essential,” and thus, are excluded and exempt from the governor’s one-hundred (100%) percent in-person workforce reduction mandate contained in Executive Order No. 202.6 dated March 18, and later modified by Executive Order Nos. 202.7 and 202.8 dated March 19 and 21, respectively.  See Allied COVID-19 Update Nos. 2, 3 and 5 regarding Executive Order Nos. 202.6, 202.7 and 202.8. 

Second, Executive Order No. 202.13 acknowledges the ESDC, by Interpretive Guidance dated March 19, and amended March 27, did, in fact, narrow the scope of “essential construction” that is excluded and exempt from the governor’s 100% in-person workforce reduction mandate contained in Executive Order Nos. 202.6, 202.7 and 202.8.  See Allied COVID-19 Update No. 3 and 8 regarding the scope of construction that is considered “essential,” and thus, may continue to operate, despite the governor’s 100% in-person workforce reduction mandate, pursuant to ESDC’s Interpretive Guidance dated March 19, and amended March 27. 

Third, Executive Order No. 202.13 seems to contain an internal conflict regarding its own duration.  The fourth recital paragraph states Executive Order No. 2013 will remain in effect through and including April 28, 2020.  However, the second-to-last bulleted paragraph of Executive Order No. 202.13 states that Executive Orders Nos. 202.6, 202.7, 202.8, “which closed or otherwise restricted public or private businesses, … shall be continued … such that all in-person business restrictions [contained therein] will be effective until 11:59 p.m. on April 15, 2020, unless later extended by future Executive Orders.”  Based on the foregoing, the duration of Executive Order No. 202.13 is unclear; it appears its provisions will remain in effect through either April 15 or April 28. 

It is also worth noting Executive Order No. 202.13 amends the New York State Workers’ Compensation Law as well as the New York Insurance Law to impose a moratorium on certain insurers from cancelling, non-renewing, or conditionally renewing any insurance policy issued to an individual or small business, or, in the case of a group insurance policy, insuring certificate holders that are individuals or small businesses, for a period of sixty days, for any policyholder, or in the case of a group insurance policy, group policyholder or certificate holder, facing financial hardship as a result of the COVID-19 pandemic. 

We will continue to keep you apprised of any additional developments in this regard, including, but not limited to, the duration of the restrictions set forth in Executive Order No. 202.13.  In the meantime, please do not hesitate to contact me directly if you have any questions or wish to discuss.

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