Questions Related to Business Closings Due to Covid-19

As a human resources consultant to small businesses, I have thought a lot about the implications of recent New York State regulations that have impacted many of my clients and other small businesses in my community. Specifically, businesses that have been deemed “non-essential” according to definitions under the NY State on “Pause” Executive Order were required to close “in-office personnel functions” until further notice effective Sunday, March 22 at 8 PM. Many are continuing to operate their businesses remotely and had been doing so on a voluntary basis prior to Governor Cuomo’s Order. Others had reduced staff on premises in accordance with state requirements but transitioned effective Sunday to being fully remote. Many small retail establishments in my town have shut down.

Businesses are given the opportunity to request designation as an “essential business” if their business does not obviously fit into one of the pre-designated categories. But the NY State on “Pause” Executive Order states that “any business that only has a single occupant/employee (e.g., gas station) has been deemed exempt and need not submit a requisition to be designated as an essential business.” How does this apply to various types of small businesses? This small technical question has large implications.

• On Saturday, a local flower shop announced a 50% off sale to clear its inventory in one day. One employee manned the store during the sale. Starting on Sunday, in response to the Executive Order, the shop shut down. But did they need to close completely?
• If a non-essential business can operate with one person at a time on premises, arranging for staggered customer pick up outside of its premises, would that business be permitted to remain operational?
• Would it be permitted to remain operational if others were needed to pick up products from other locations and bring products to the door of the retail location, but not enter?

This type of activity may be permissible under the Executive Order. Are small businesses aware that if they adjust their business practices to fit within this model, they may be able to remain operational during this time?

• Another corporate employer has remained operational and has permitted 100% of its workforce to work remotely throughout this public health crisis. This company employs photographers. Remote work for a photographer might consist of visiting and photographing building exteriors and, in some cases, entering unoccupied buildings to photograph interior features. This work would allow the employee to remain isolated from others.
• Should employers allow individuals to continue their remote field work in isolated areas? Would this type of work be permitted without the employer having to qualify as an essential business?

During this difficult time, with major public health as well as economic repercussions flowing from every policy decision, it is critical to continue to think through and communicate to the public around these issues. Some “non-essential” businesses are taking this Executive Order to mean that they must shut down operations or have all of their employees work from home unless they are a one-person business. However, with a close look at the Executive Order, and some reengineering of business processes, it may be possible for some small businesses to allow more activities than they think.

Note: KPHR Advisors does not provide legal advice and nothing on this website should be construed as legal advice. Please consult with legal counsel as necessary.