March 27, 2020

News

3-27-20 Client Alert Executive Orders and Other Impact on Businesses

Since the issuance on January 30, 2020 of the initial Executive Order declaring a Disaster Emergency in the State of New York (EO 202), the Governor has issued ten additional Executive Orders (EO 202.1 – 202.10) Each has continued and expanding on the original order. More are expected almost daily.

Most of the Executive Orders invoke the Governor's powers to suspend various laws, rules and regulations so as to empower State agencies to rapidly act to combat the Coronavirus spread. It enables State Agencies to act without complying with many of the laws and procedures that would otherwise apply.

As many of the Executive Orders incorporate by reference the laws, rules and regulations being altered, determining the precise impact on a particular business can require additional guidance.

To aid in evaluating how your business might be impacted, a summary of some of the most significate provisions impacting businesses is set forth below. Links to the relevant Executive Orders and other guidance are also set forth below.

The Federal Government and the State of New York have enacted a number of laws and programs designed to afford businesses financial relief from the economic consequences of the Executive Orders. Information on many of them is available on the Woods Oviatt Covid -19 Resources web page at:

https://www.woodsoviattgilman.com/practices/covid-19-multidisciplinary-crisis-group

Links to Small Business Administration Loan programs and other tax and financial programs are included at the end of this Client Alert.

This Client Alert supplements several previous Alerts that addressed more specifically labor and employment matters.

Members of the Woods Oviatt Coronavirus Response Team are available to help you address any matters related to your business or profession. A contact directory is also set forth below.

We will update online as Executive Orders are issued and additional information becomes available.

Governor's Executive Orders: https://www.governor.ny.gov/executiveorders

No. 202 includes:

Finding and Declaration of Disaster Emergency and implementation of the State Comprehensive Emergency Management Plan;
Authorizes any State Agency to suspend or modify any statute, local law, ordinance, rule or regulation if compliance would prevent, hinder or delay action necessary to cope with the disaster;
Authorization for State and Local Governments to acquire and enter into emergency contracts for goods and services outside of normal procurement procedures:

https://www.governor.ny.gov/news/no-202-declaring-disaster-emergency-state-new-york

No. 202.3 includes:

Limitation on gathering of more than 50 attendees;
Closure of Restaurants and Bars;
Allows limited sale of alcoholic beverages for off premises consumption by retail on-premises licensees in conjunction with take out or delivery food sales (See SLA link below);
Closure of gyms, fitness centers and classes, and movie theaters

https://www.governor.ny.gov/news/no-2023-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.4 includes:

School closures;

https://www.governor.ny.gov/news/no-2024-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.5 includes:

Relaxes licensing and registration requirements for physicians and other health care providers licensed and in good standing in states of than New York or licensed in New York but not currently registered to practice in New York;
Authorizes Boards of Directors of New York corporations to take action through consents submitted electronically via email.
Additional Closures: all places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.

https://www.governor.ny.gov/news/no-2025-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.6 includes:

Applicable to all businesses and not-for-profit entities - required to utilize telecommuting or work from home procedures and reduce the in-person workforce at any work locations by 50% no later than March 20 at 8 p.m. (Note EO 202.8 increased the percentage to 100% effective March 22, 2020 at 8:00 p.m., and added penalties for non-compliance -- see below.
Businesses or entities providing essential services or functions are not subject to the in-person restrictions.
Essential services or functions include health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public; See link below for guidance from Empire State Development Corporation.
Any other business may be deemed essential after requesting an opinion from the Empire State Development Corporation, to which businesses are determined to be essential.

https://www.governor.ny.gov/news/no-2026-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.7 includes:

Increases the workforce reduction percentage ordered in EO 202.6 above, to 75% effective 8:00 p.m. on March 21, 2020; Increased to 100% under EC202.8 – see below.
Orders the closure effective March 21, 2020 at 8:00 p.m. of all barbershops, hair salons, tattoo or piercing parlors and related personal care services;
Allows Notaries to notarize documents utilizing audio-video technology provided: (i) the Notary either knows the person signing or the person displays a valid ID to the Notary during the video signing conference; (ii) the video conference must allow for two way interaction (i.e. no pre-recorded signing); (iii) the person signing must affirmatively represent he or she is physically in the State of New York; and (iv) the person signing must transmit by fax or electronic means a legible copy of the signed document directly to the notary on the same date it was signed. The Notary may notarize the transmitted copy and transmit the same back to the person.

https://www.governor.ny.gov/news/no-2027-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

No. 202.8 includes:

Increases the workforce reduction percentage ordered in EO 202.6 above, to 100% effective 8:00 p.m. on March 22, 2020; Continues the essential services exemption; Violations are subject to enforcement as if it were a violation of an order under Section 12 of the Public Health Law –fines and penalties – see link below;
Extends expiration dates of drivers licenses and vehicle registrations;
Suspends commercial and residential evictions and foreclosures for 90 days;
Abates interest and penalties for late payment of sales taxes for the February 29 filing period.

https://www.governor.ny.gov/news/no-2028-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

https://www.woodsoviattgilman.com/news-insights/2020/3-21-20-latest-update-on-governor-cuomos-executive-order-100-of-non-essential-workforce-must-work-from-home

No. 202.9 includes:

Modifies the Banking Law to allow mortgage payment forbearance for up to 90 days for banks subject to the jurisdiction of the Department of Financial Services;

Note: Similar forbearance procedures are being put in place for federally regulated mortgages (FHA, Fannie Mae, HUD, etc.)

Provides for the Department of Financial Services to require licensed lending entities under its jurisdiction to provide a similar forebears:
Empowers the Department of Financial Services to restrict or modify ATM, overdraft and credit card late fees period of the emergency.

No. 202.10 includes:

Temporarily suspends or modifies a number of healthcare regulations and laws including:

Licensing, Registration, Scope of Practice: Temporary suspension of Education law and Regulations relating to licensing, registration and scope of practice limitations for a number of health care related professions and programs;
Professional Liability Immunity: Temporary suspension of Education law and Regulations to the extent necessary to provide physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses with immunity from civil liability for actions or omissions in the course of providing medical services in response to the COVID-19 outbreak; Does not apply to acts or omissions constituting gross negligence;

Note: The Executor Order does not address issues of common law malpractice and its application beyond licensing and professional conduct issues is not clear.

Record Keeping: Relieves and relaxes record keeping requirements of health care providers and grants immunity from liability for failure to comply with record keeping to the extent necessary for health care providers to perform tasks as may be necessary to respond to the COVID-19 outbreak.

https://www.governor.ny.gov/news/no-20210-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

Actions of Other New York State Agencies:

Department of Agriculture and Markets:

https://agriculture.ny.gov/coronavirus

New York State has not restricted farms, farmers’ markets, grocery stores, retail food stores, and food manufacturing facilities from being open. These operations are exempt under the mass gatherings guidance as essential food supply chain industries.
Farms, fisheries, operations that care for animals, farmers’ markets, food manufacturers/processors, grocery stores, retail food stores, gas stations, and convenience stores are exempt from the state’s guidance for workforce reduction.
Businesses and vendors supplying goods and services to these essential industries, such as agri-businesses and operations supporting animal health, are also exempt.
These businesses are exempt as they are essential food supply chain and related industries. They can continue to operate with their full workforce.

New York State Liquor Authority:

https://sla.ny.gov/Restrictions-in-Response-to-COVID-19

Among other things:

Provides guidance on Executive Order that required cessation of on-premises sales of alcoholic beverages and/or food. Also required cessation of sales for on-premises consumption by licensed manufacturers with on-premises privileges.
Licensed manufacturers may continue all manufacturing operations.
Provides guidance for retail licensees sale for off-premises consumption including delivery and food requirements;
Suspends license surrender obligations for business closing during the duration of the Executive Orders.
Liquor stores may remain open but must abide by capacity and social distancing guidance.

Price Gouging: General Business Law §396

https://codes.findlaw.com/ny/general-business-law/gbs-sect-396-r.html

Healthcare Professional Licensing and Credentialing and Telehealth:

The Governor's Executive Order 202.5 relaxes licensing and registration requirement for physicians and health care providers licensed and in good standing in other states or licensed in New York but not registered to practice.

https://www.governor.ny.gov/news/no-2025-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency

The Department of Mental Hygiene and the US Department of Health and Human Services are relaxing requirements for the provision of telehealth services. For further information, contact a member of the Woods Oviatt response team listed below.

Other Resources:

Woods Oviatt Covid-19 Resources and Client Alerts:

https://www.woodsoviattgilman.com/practices/covid-19-multidisciplinary-crisis-group

SBA Emergency Loan Programs:

The SBA has implemented emergency business loan programs for which New York small business owners are eligible. To get information or apply for a loan:

For Information: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources;
To Apply for a Loan: https://disasterloan.sba.gov/ela/

Federal:

Daily Announcements from Federal Agencies:

https://www.ncsl.org/ncsl-in-dc/publications-and-resources/covid-19-daily-announcements-from-federal-agencies.aspx

Extension of Federal Income Tax Filing Deadline:

https://www.irs.gov/pub/irs-drop/n-20-18.pdf

https://www.irs.gov/newsroom/filing-and-payment-deadlines-questions-and-answers

New York State:

Sales Tax Abatement of interest on quarterly sales and use tax filings and remittances with a due date of March 20, 2020 for certain taxpayers unable to timely file and pay as result of the COVID-19 virus: https://www.tax.ny.gov/pdf/notices/n20-1.pdf

Please contact your Woods Oviatt attorney or the attorneys listed below regarding COVID-19 issues.

For more information regarding Coronovirus (COVID-19) or to access all of our client alerts go to:

https://www.woodsoviattgilman.com/covid19

COVID-19 Multidisciplinary Crisis Group Co-Leaders