Good morning,
Tuesday evening, Governor Cuomo posted Executive Order 202.68, his seventy-first Executive Order during the COVID-19 state of emergency. Executive Order 202.68, dated October 6, 2020, continues the suspensions and modifications of law, and any directives, not superseded by a subsequent directive contained Executive Order 202.31 (found here), 202.41 (found here), 202.42 (found here), 202.43 (found here), 202.51 (found here), 202.52 (found here), 202.56 (found here), as contained in Executive order 202.63 (found here) and Executive Orders 202.61 (found here) and 202.62 (found here) for another thirty days through November 5, 2020. In addition, Executive Order 202.68 modifies and suspends certain laws as well as sets forth directives, all of which are designed to address matters related to the COVID-19 crisis. Executive Order 202.68 is effective from October 6, 2020 through November 5, 2020. A copy of Executive Order 202.68 can be found here.
NEW DIRECTIVES
How to solve a problem like a COVID-19 cluster? Start with color-coded containment zones.
Over the past several days, New York State has witnessed spikes in COVID-19 cases among its residents in several areas across the state. As a result, Governor Cuomo announced the implementation of a cluster action initiative designed to attack the outbreak and reduce the number of cases in those areas. Pursuant to Executive Order 202.68, the State Health Department shall be tasked to determining areas in the New York 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. Executive Order 202.68 provides that certain activities will be restricted, and any permitted activities shall be conducted in strict adherence to Department of Health guidance.
The containment areas for the cluster action initiative are identified three colors – red, yellow, and orange. Based upon the severity of the cluster activity, the Department of Health shall adopt in the most severe, or “red zones,” the following mitigation measures will be imposed.
- Non-essential gatherings of any size shall be postponed or cancelled;
- all non-essential businesses, as determined by the Empire State Development Corporation based upon published guidance, shall reduce in-person workforce by 100%;
- houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer;
- any restaurant or tavern shall cease serving patrons food or beverage on-premises and may be open for takeout or delivery only; and
- the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.
In moderate severity warning areas, or “orange zones”, the following mitigation measures will be imposed:
- Non-essential gatherings shall be limited to 10 people;
- certain non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis, and all other personal care services shall reduce in-person workforce by 100%;
- houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer;
- any restaurant or tavern shall cease serving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided however, any one seated group or party shall not exceed 4 people; and
- the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.
Finally, in precautionary or “yellow zones,” the following mitigation measures will be imposed:
- Non-essential gatherings shall be limited to no more than 25 people;
- houses of worship shall be subject to a capacity limit of 50% of its maximum occupancy and shall adhere to Department of Health guidance;
- any restaurant or tavern must limit any one seated group or party size to 4 people; and
- the Department of Health shall issue guidance by October 9, 2020 regarding mandatory testing of students and school personnel, and schools shall adhere to such guidance.
MODIFICATION OF LAWS
As with many of prior issued executive orders, Executive Order 202.68 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis, this time through November 7, 2020. Executive Order 202.68, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
- Modifies sections 12 and 206 of the Public Health Law, to the extent necessary, notwithstanding any other provision of this Executive Order, to 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
- Modifies 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.