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.

FOR GUIDANCE RELATED TO DETERMINING WHETHER A BUSINESS ENTERPRISE IS SUBJECT TO A WORKFORCE REDUCTION UNDER EXECUTIVE ORDER 202.6, RELATED TO NEW YORK’S PAUSE, PLEASE CLICK HERE.

Please review Frequently Asked Questions here.

UPDATED: OCTOBER 7, 2020 AT 4:10 PM

This guidance is issued in accordance with New York Governor Andrew M. Cuomo’s Executive Order 202.68, which directs the Department of Health 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. Certain activities shall be restricted and any permitted activities, in the three zones (Red, Orange, Yellow) described below, shall be conducted in strict adherence to Department of Health guidance.

This guidance is issued by the New York State Department of Economic Development d/b/a Empire State Development (ESD), in consultation with the Department of Health, and applies to each business or entity location individually and is intended to assist businesses in determining whether they are an essential business, if they are located in areas with designated cluster activity (see below for details). With respect to business or entities that operate or provide both essential and non-essential services, supplies or support, only those lines and/or business operations that are necessary to support the essential services, supplies, or support are exempt from the workforce reduction restrictions.

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. Further, State and local governments, including municipalities and authorities, are exempt from these essential business reductions, but may be subject to other provisions that restrict non-essential, in-person workforce and other operations under Executive Order 202.

On October 6, 2020, Governor Cuomo announced a new cluster action initiative to address COVID-19 hotspots that cropped up in various areas of New York. Working with the top public health experts, the State developed a science-based approach to contain these clusters and stop any further spread of the virus, including new rules and restrictions directly targeted to areas with the highest concentration of COVID cases and the surrounding communities. The new rules are in effect for a minimum of 14 days.

The initiative is composed of three steps:

(1) Reduce in-person activities and interactions within the cluster, similar to New York on PAUSE;

(2) Take action in the area surrounding the cluster to stop the spread; and

(3) Take precautionary action in the outlying communities.
 

The initiative currently applies to clusters in the following areas:

  • Broome County (One Area, Yellow) - Click Here for Map
  • Brooklyn (One Area, Red, Orange and Yellow) - Click Here for Map
  • Orange County (One Area, Red and Yellow) - Click Here for Map
  • Queens (Two Areas, Red, Orange and Yellow) - Click Here and Here for Maps
  • Rockland County (One Area, Red and Yellow) - Click Here for Map

Find COVID-19 Hot Spot Zones by Address

Red Zone – Cluster Itself

Activity restrictions include:

  • No non-essential gatherings of any size
  • Houses of worship are subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer
  • Restaurants and taverns must cease serving patrons food or beverage on-premises and may be open for takeout or delivery only
  • Schools must close for in-person instruction, except as otherwise provided in Executive Order.

All non-essential businesses in the red zone, which do not meet the criteria below, shall reduce in-person workforce by 100%.

Orange Zone – Warning Zone

Activity restrictions include:

  • Non-essential gatherings shall be limited to 10 people
  • Houses of worship are subject to a capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer
  • Restaurants and taverns must cease serving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided that any one seated group or party must not exceed 4 people
  • Schools must close for in-person instruction, except as otherwise provided in Executive Order.
  • Certain non-essential businesses, for which there is a higher risk of transmission of the COVID-19 virus, shall reduce in-person workforce by 100%; 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

Yellow Zone – Precautionary Zone

Activity restrictions include:

  • Non-essential gathers are limited to no more than 25 people
  • Houses of worship are subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance
  • Restaurants and taverns must limit any one seated group or party size to 4 people
  • Schools shall adhere to applicable guidance issued by the Department of Health regarding mandatory testing of students and school personnel

For purposes of Executive Order 202.68, essential businesses allowed to remain open in any red zone(s) include:

1. Essential health care operations including

  • research and laboratory services
  • hospitals
  • walk-in-care health clinics and facilities
  • veterinary and livestock medical services
  • senior/elder care
  • medical wholesale and distribution
  • home health care workers or aides for the elderly
  • doctors and doctors’ offices for both emergency and non-emergency appointments
  • dentists and dental practices for both emergency and non-emergency appointments
  • nursing homes, residential health care facilities, or congregate care facilities
  • medical supplies and equipment manufacturers and providers
  • licensed mental health providers
  • licensed substance abuse treatment providers
  • medical billing support personnel
  • speech pathologists and speech therapy
  • chiropractic services
  • acupuncture
  • physical therapy
  • occupational therapy
  • medically necessary massage therapy

2. Essential infrastructure including

  • public and private utilities including but not limited to power generation, fuel supply, and transmission
  • public water and wastewater
  • telecommunications and data centers
  • airlines/airports
  • commercial shipping vessels/ports and seaports
  • public and private transportation infrastructure such as bus, rail, for-hire vehicles, garages
  • hotels, and other places of accommodation, including campgrounds. 
    • Campgrounds must take precautions to ensure campers maintain appropriate social distancing and adhere to proper cleaning and disinfecting protocols, including but not limited to maintaining six feet of distance between campers, unless wearing an acceptable face covering, excluding persons from the same household who are camping together.

3. Essential manufacturing including

  • food processing, manufacturing agents including all foods and beverages
  • chemicals
  • medical equipment/instruments
  • pharmaceuticals
  • sanitary products including personal care products regulated by the Food and Drug Administration (FDA)
  • telecommunications
  • microelectronics/semi-conductor
  • food-producing agriculture/farms
  • household paper products
  • defense industry and the transportation infrastructure
  • automobiles
  • any parts or components necessary for essential products that are referenced within this guidance

4. Essential retail including

  • grocery stores including all food and beverage stores
  • pharmacies
  • convenience stores
  • farmer’s markets
  • gas stations
  • restaurants/bars (but only for take-out/delivery)
  • hardware, appliance, and building material stores
  • pet food
  • telecommunications to service existing customers and accounts
  • all other retail may operate for curbside pick-up or delivery only with no customers allowed within the establishment and only one employee physically present to fulfill orders.

5. Essential services including

  • 2020 Census operations and activities
  • trash and recycling collection, processing, and disposal
  • mail and shipping services
  • laundromats and other clothing/fabric cleaning services
  • building cleaning and maintenance
  • child care services
  • bicycle repair
  • auto repair and maintenance
  • automotive sales conducted remotely or electronically, with in-person vehicle showing, return, and delivery by appointment only
  • warehouse/distribution and fulfillment
  • funeral homes, crematoriums and cemeteries
  • storage for essential businesses
  • maintenance for the infrastructure of the facility or to maintain or safeguard materials or products therein
  • animal shelters and animal care including dog walking, animal boarding and pet grooming but only to the extent necessary to ensure animal health
  • food and non-food agriculture
  • landscaping, gardening and horticulture 
  • designing, printing, publishing and signage companies to the extent that they support essential businesses or services
  • remote instruction or streaming of classes from public or private schools or health/fitness centers; provided, however, that no in-person congregate classes are permitted

6. News media

7. Certain office-based work, including financial services and research

  • banks or lending institution
  • insurance
  • payroll
  • accounting
  • services related to financial markets, except debt collection
  • higher education research
  • other office-based work not specified here may operate remotely

8. Providers of basic necessities to economically disadvantaged populations including

  • homeless shelters and congregate care facilities
  • food banks
  • human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support

9. Construction

  • Construction projects may continue, but any work that can be done remotely such as office-based work must proceed remotely, to the extent practicable. Employees/personnel who are not directly involved in in-person work at the business location/construction site are prohibited.

10. Defense

  • defense and national security-related operations supporting the U.S. Government or a contractor to the US government

11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other businesses including

  • law enforcement, including corrections and community supervision
  • fire prevention and response
  • building code enforcement
  • security, including security personnel for residential and commercial buildings
  • emergency management and response, EMS and 911 dispatch
  • building cleaners or janitors
  • general and specialized maintenance whether employed by the entity directly or a vendor, including but not limited to heating, ventilation, and air conditioning (HVAC) and pool maintenance
  • automotive repair
  • cleaning, disinfection, and sanitation services
  • occupational safety and health professionals
  • residential and commercial moving services

12. Vendors that provide essential services or products, including logistics and technology support, child care and services including but not limited to:

  • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services
  • any personnel necessary for online or distance learning or classes delivered via remote means

13. Recreation

  • Local government are permitted to determine whether parks and other public spaces, as well as low-risk recreational activities may be open. 
    • If open, appropriate social distancing of at least six feet among individuals must be abided, acceptable face coverings must be worn by individuals who are over the age of two and able to medically tolerate such coverings, and frequent cleaning/disinfection measures must be in place for hard surfaces and objects frequently touched by multiple people (e.g., handrails, benches).

14. Other professional services with extensive restrictions

  • Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. 
    • Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.
  • Real estate services shall be conducted remotely for all transactions, including but not limited to title searches, appraisals, permitting, inspections, and the recordation, legal, financial and other services necessary to complete a transfer of real property; provided, however, that any services and parts therein may be conducted in-person only to the extent legally necessary and in accordance with appropriate social distancing and cleaning/disinfecting protocols; and nothing within this provision should be construed to allow brokerage and branch offices to remain open to the general public (i.e. not clients).