Can my business still operate during New York’s COVID-19 restrictions?

In speaking with company leaders, this is one of the first questions that come up.

What follows is how I’m responding when asked – but with the caveat that this is my personal interpretation of regulations in place as of March 23rd and isn’t official guidance from either Upstate Venture Connect or any governmental agency.

Follow links I’ve included in this post to see source documents yourself. And let’s keep dialogue flowing to share our collective insights to help each other mobilize and connect resources – including through UVC’s UNYCEOs email group referenced in our Upstate CEO COVID-19 Pledge.


Restrictions are intended to protect your workforce

Since restrictions are intended to protect your workers (including volunteers for non profits), any organization who can have their employees work from home should be allowed, and in fact encouraged, to do so.

The question becomes what happens if a portion of your workforce have roles that are performed either in a company facility or some other location.

No matter where the location is beyond the home, New York Governor Andrew Cuomo’s Executive Order 202.6 requires that each for-profit, non-profit, or government employer shall reduce their in person workforce at company facilities and locations by 100% from pre-state of emergency declaration employment levels – effectively closing the doors to your work locations unless the employer falls into one of these two exception categories:

  1. Employers who are operating within one of NY State’s designated categories of “Essential Services”
  2. Employers who are not in a specifically enumerated category of Essential Services but apply for and are approved by Empire State Development (ESD) for designation as an Essential Business.


NY State Designated Categories of Essential Services

The Executive Order presently defines 12 different categories of Essential Services including health care operations, essential infrastructure and selected manufacturing, retail, financial services, transportation, logistics and other services needed to respond to the COVID-19 crisis or sustain basic life functions in a community..

Details on the specifics behind each of the 12 enumerated categories are listed here in ESD’s Guidance for Determining a Business Enterprise is Subject to Workforce Reduction Under Recent Executive Orders.

Keep in mind that the text of Executive Order 202.6 reflects what was approved on the issue date. Government response to COVID-19 seems to move almost hourly and new orders are being given to clarify missed gaps in the original guidance. So bookmark these links and check back as you’re firming up decisions to see the updated guidance.

This link to the Executive Order’s FAQ is also very useful in deciding if your business can fall into one of the enumerated categories – including what to do if one portion of your business provides essential service and another portion does not.


What if my business isn’t defined on the official NY State authorized list of Essential Services but I believe our company is providing an essential service that falls within the intent of the Executive Order?

If you’re not already on the enumerated list mentioned above, it’s necessary to fill out this online form to apply for your business to be approved by Empire State Development as an Essential Business. At present, I’m thinking ESD is being flooded with a lot more applications than they are equipped to handle with a fast decision.

Since government is most interested in fast tracking those businesses that have a compelling argument on how their company is providing a product or service fulfilling an emergency response need to fighting COVID-19 or sustain basic life functions, you might consider retaining a copy of your ESD application and asking your mayor, state assemblyman or senator, or regional ESD representative to assist in advocating your application for expedited review.

And if your argument is clear enough to fall within the existing exceptions outlined in the ESD guidance then there may be no need to apply. ESD guidance concludes with the following statement:

  “Requests by businesses to be designated an essential function as described above, should only be made if they are NOT covered by the guidance.”


Leave a Reply