Saturday evening, Governor Andrew Cuomo issued his thirty-ninth Executive Order during this state of emergency. Executive Order 202.38 contains several directives designed to address matters related to the COVID-19 crisis. These new directives ease certain restrictions imposed during this state of emergency as well as provide additional support for the gradual reopening of New York State. This Executive Order is effective from June 6, 2020 through July 6, 2020.
In addition to the new directives discussed below, Executive Order 202.38 also continues the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202 and each successor Executive Order up to and including Executive Order 202.14, until July 6, 2020. The copy of Executive Order 202.38 is here.
- As New York State reopens its work sites, commercial buildings and retail stores, Executive Order 202.38 provides business owners and building operators with another tool to limit the exposure of COVID-19 in their particular establishment. Now under Executive Order 202.38, consistent with Center for Disease Controls and Prevention and New York State Health Department Guidance, commercial building owners, retail store owners and those authorized on their behalf to manage public places within their buildings and businesses (collectively “Operators”) shall have the discretion to require individuals to undergo temperature checks prior to being allowed admittance.
- Similar to the recent directives involving the wearing of a mask or face covering in a store or building, Executive Order 202.38 gives Operators the discretion to deny admittance to (i) any individual who refuses to undergo such a temperature check and (ii) any individual whose temperature is above that proscribed by New York State Health Department Guidelines. Moreover, no Operator shall be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of this directive. This directive shall be applied in a manner consistent with the American with Disabilities Act and any provision of either New York State or New York City Human Rights Law.
More Congregants at an In-Person Religious Service
- Previous Executive Orders permitted in-person religious services or ceremonies to consist of 10 or less individuals provided that such services or ceremonies adhere to social distancing protocols and cleaning and disinfection protocols required by the New York State Department of Health. Executive Order 202.38 modifies these Executive Orders to permit any non-essential gatherings for houses of worship at no greater than 25% of the indoor capacity of such location, provided it is (i) in a geographic area in Phase 2 Reopening, and (ii) the gathering adheres to social distancing protocols and cleaning and disinfection protocols required by the New York State Department of Health.
- Last week, Governor Cuomo announced that outdoor dining, which was originally scheduled to resume when an area entered a Phase 3 Reopening, would now be permitted when a New York region entered a Phase 2 Reopening. Executive Order 202.38 memorializes this announcement, modifying the directive contained in Executive Order 202.3, as extended, that required any restaurant or bar to cease serving patrons food or beverage on-premises, to the extent necessary to allow a restaurant or bar to serve patrons food or beverage on-premises only in outdoor space, provided such restaurant or bar is in compliance with New York State Health Department guidance promulgated for such activity.
- Moreover, given the new outdoor dining rules and requirements, restaurants and bars now will be permitted to expand their service area. Under Executive Order 202.38, upon the resumption of on-premises outdoor service of food and beverages at the licensed premises of restaurants and bars, to facilitate compliance with social distancing requirements in connection with such service, notwithstanding any provision of the Alcoholic Beverage Control law, restaurants or bars in the state of New York shall be permitted to expand the premises licensed by the State Liquor Authority to use (a) contiguous public space (for example, sidewalks or closed streets) and/or (b) otherwise unlicensed contiguous private space under the control of such restaurant or bar.
- This expansion of service is subject to reasonable limitations and procedures set by the Chairman of the State Liquor Authority and, with respect to (a) the use of public space, subject to the reasonable approval of the local municipality, and all subject to the guidance promulgated by the State Health Department.