ESD FAQ in Response to New York’s Cluster Action Initiative

For guidance for determining whether a business enterprise is subject to a workforce reduction under Executive Order 202.68, related to New York’s Cluster Action Initiative to address COVID-19 hotspots, please click here.


Pursuant to New York Governor Andrew M. Cuomo’s Executive Order 202.68, which directs the Department of Health (DOH) to determine areas in the State that require enhanced public health restrictions based upon cluster-based cases of COVID-19 at a level that compromises the State’s containment of the virus, the below frequently asked questions (FAQ) provide additional context on permissible activities within the three zones (Red, Orange, Yellow) which are described below.

  1. Q: How can I identify where the red, orange, or yellow zones are located based on clusters of COVID-19 cases?
    A: Please refer to the New York Forward website and the ESD website on the State’s cluster action initiative for the most up-to-date information on the currently designated zones. To determine whether you are located within a zone, you can check your address here.
  2. Q: What restrictions are in place in the various zones? 
    The initiative divides clusters and the areas around them into three categories with successively higher restrictions within each one: Red Zone - most severe zone; Orange Zone - warning zone; and Yellow Zone - precautionary zone. 

    The chart below is a summary and is not exhaustive. For full details, please see ESD's Guidance Related to New York's Cluster Action Initiative.

    Where permitted to operate within the cluster action initiative, businesses and other entities must continue to follow the relevant industry-specific guidelines provided by Department of Health as available on the New York Forward website for their applicable operations and activities.
    Type of Activity RED ORANGE YELLOW
    Non-Essential Gatherings Prohibited 10 people maximum, indoors and outdoors 25 people maximum, indoors and outdoors
    House of Worship

    Lesser of: 25% of maximum capacity 10 people

    Lesser of: 33% of maximum capacity 25 people

    50% of maximum capacity
    Businesses Non-essential businesses are closed

    Certain high-risk non-essential businesses (e.g., gyms, fitness centers and classes, barber shops, hair salons, personal care services) are closed.

    Dining Take-out or delivery only Outdoor dining, takeout or delivery only, 4-person maximum per table Indoor and outdoor dining permitted, 4-person maximum per table
    Schools Closed, Remote-only Closed, Remote-only Open
    Mandatory weekly testing of students and school personnel, in accordance with DOH guidance to be issued by October 9, 2020.

  3. Q: If my business is located within a red, orange or yellow zone, how can I find out if my business is permitted to continue in-person operations?
    A: Please visit ESD’s Guidance Related to New York's Cluster Action Initiative, located here.  
  4. Q: Should businesses within the designated zones be following the previously issued New York Forward reopening guidance from DOH, or is there new guidance forthcoming?
    A: Where permitted to operate within the cluster action initiative’s zones, businesses and other entities must continue to follow the relevant industry-specific guidelines provided by DOH as available on the New York Forward website for their applicable operations and activities. Any additional restrictions are detailed above; further information is available here.
  5. Q: How long are these new rules in effect?
    A: The new rules are in effect for a minimum of 14 days, subject to the evolving public health situation.  Please check the New York Forward website and ESD website regularly for any updates.
  6. Q: Can events or gatherings that were scheduled to take place in the red, orange, or yellow zones prior to Executive Order 202.68 proceed as planned? 
    A: So long as Executive Order 202.68 is in effect and the area where the event or gathering is set to take place is within the cluster action initiative zone, non-essential gatherings are subject to the limitations regardless of when they were planned, and no non-essential gathering is permitted in the red zone. 

    Specifically, no non-essential gatherings of any size are permitted within the red zone, only gatherings of ten or fewer people are permitted within the orange zone, and only gatherings of 25 or fewer people are permitted within the yellow zone. Please note that there are additional specific limitations for religious services, which are listed in the above chart.
  7. Q: Can sports and recreational activities take place within the zones?
    A: In the red and orange zones, schools are closed for in-person activities, including school-sponsored sports.  For sports and recreational activities that are unaffiliated with a school, local governments are permitted to determine whether – and which – low-risk recreational activities, as well as parks and other public spaces may be open.

    In the yellow zone, all sports and recreational activities must strictly adhere to DOH Guidance for Sports and Recreation during the COVID-19 Public Health Emergency.
  8. Q: For businesses in an Orange Zone or Red Zone, are all gyms, hair salons, and nail salons and other personal care services required to fully close?
    Yes. Certain non-essential businesses, for which there is potential for a higher risk of transmission of the COVID-19 virus, shall reduce in-person workforce by 100% within both the orange and red zone; such businesses include:
     - Gyms, fitness centers or classes
    - Hair salons and barbershops
    - All other personal care services including but not limited to spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis.
  9. Q: I own a restaurant in one of the Zones. What restrictions are in effect for my restaurant?
    A: In addition to the DOH Guidance for Food Services during the COVID-19 public health emergency in your region (i.e., New York City and Rest of State), please note the following restrictions that are in effect for the zones: 
      Red Zone Orange Zone Yellow Zone
    Dining Take-out or Delivery Only Outdoor dining, takeout or delivery only, 4 person maximum per table Indoor and outdoor dining permitted, 4 person maximum per table

  10. Q: Where do I receive updates to learn if my business restrictions change as red, orange, and yellow zones are updated?
    A: Please refer here for up-to-date information on the currently designated zones.
  11. Q: Due to special circumstances, I cannot fully comply with the requirements of the cluster action initiative guidance. Can I apply for a waiver?
    A: No, due to health and safety concerns, waivers will not be considered or issued.
  12. Q: My business is listed as essential per ESD’s Guidance on Executive Order 202.68. Do I need approval or confirmation from ESD, DOH, or any State entity to continue operating?
  13. Q: Will New York State be enforcing the new regulations and restrictions of this order? 
    A:  Yes. New York State is working in close coordination with local officials and authorities to ensure enforcement.
  14. Q: What is the penalty for non-compliance with the requirements of the order?
    A:  Per Executive Order 202.68: Penalties for non-compliance can be as high as $15,000.
    Specifically, the Executive Order states: Sections 12 and 206 of the Public Health Law, to the extent necessary to, notwithstanding any other provision of this Executive Order, provide that any individual who encourages, promotes or organizes a non-essential gathering as set forth in Department of Health regulation, shall be liable for a civil penalty not to exceed $15,000 per day; and

    Sections 12-a and 206(4) of the Public Health Law, to the extent necessary to authorize, at the direction of the Commissioner of Health or the Commissioner’s representative, any local government official to assess, and the local government to retain, a civil penalty for violations of Executive Orders issued pursuant to Section 29-A of the Executive Law, or any regulations of the Department of Health, that impose requirements pertaining to maintaining social distance and wearing of face coverings, for the duration of this disaster emergency, and to conduct any hearing related to such penalties.  Such penalties, if assessed on an individual basis, shall not exceed $1,000 per violation, except as otherwise provided herein.
  15. Q: Can I refuse entry to someone not wearing a mask at my business?
    A: Yes, businesses must refuse entry so long as the refusal is not on a discriminatory basis. 
  16. Q: How should businesses whose Certificate of Occupancy does not list a building occupancy maximum comply with the maximum occupancy limits, as prescribed in the guidance?
    A: For buildings that do not have the occupant load posted, the building owner can contact the local building department (as the local authority having jurisdiction), as they may have the occupant load listed in the building department’s records. The local building department may use this information when preparing for the required fire safety and property maintenance inspections. 

    For reference, the maximum floor area allowances per occupant in the New York State Uniform Fire Prevention and Building Code (the Uniform Code) can be found in Chapter 10 of the 2020 Fire Code of New York State (2020 FCNYS). The occupant load is typically calculated by the building official using Table 1004.5 of the 2020 FCNYS.  In order to use Table 1004.5 of the 2020 FCNYS, you must know the use of the space so that you can determine what the occupant load factor is for such space.

    The occupant load factor differs for the various uses.  For example, a motor vehicle showroom (which is classified as a Business Group B occupancy under Chapter 3 of the 2020 FCNYS), the code official would calculate the gross square footage and divide that number by 150 which is occupant load factor for business areas.  For a motor vehicle showroom that is 10,000 square feet in area, the maximum occupant load would be 66 people.

For any questions not listed here, please contact your Regional Control Room through the email addresses below.





Albany, Columbia, Greene, Rensselaer, Saratoga, Schenectady, Warren, Washington

[email protected]

Central NY

Cayuga, Cortland, Madison, Onondaga, Oswego

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Finger Lakes

Genessee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates

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Long Island

Nassau, Suffolk

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Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, Westchester

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Mohawk Valley

Fulton, Herkimer, Montgomery, Oneida, Otsego, Schoharie

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New York City

Bronx, Kings, New York, Richmond, Queens

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North Country

Clinton, Essex, Franklin, Hamilton, Jefferson, Lewis, St. Lawrence

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Southern Tier

Broome, Chemung, Chenango, Delaware, Schuyler, Steuben, Tioga, Tompkins

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Western NY

Allegany, Cattaraugus, Chautauqua, Erie, Niagara

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