I trust this e-mail continues to find you and your families healthy and safe. It is another Friday during the COVID-19 crisis, and what do you know, another an e-mail alert from me about a new Executive Order.
Thursday evening, Governor Andrew Cuomo issued his thirty-fifth Executive Order during this state of emergency. Executive Order 202.34 issues two directives to address matters related to the COVID-19 crisis. This Executive Order is effective from May 28, 2020 through June 27, 2020. The copy of Executive Order 202.34 is here.
No Mask, No Service
- Executive Order 202.17 contained a directive that required any individual over age 2, and able to medically tolerate a face-covering, to cover their nose and mouth with a mask or cloth face-covering when in a public place. Now, pursuant to Executive Order 202.34, business operators and building owners, and those authorized on their behalf, shall have the discretion to ensure compliance with mask directive of Executive Order 202.17, including the discretion to deny admittance to individuals who fail to comply with the directive in Executive Order 202.17 or to require or compel their removal if they fail to adhere to such directive.
- The building owner or business operator shall not be subject to a claim of violation of the covenant of quiet enjoyment, or frustration of purpose, solely due to their enforcement of the Executive Order 202.17 mask directive. Nothing in Executive Order 202.34 prohibits or limits the right of New York State and local enforcement authorities from imposing fines or other penalties for any violation of the directive in Executive Order 202.17. Executive Order 202.34 shall be applied in a manner consistent with the American with Disabilities Act or any provision of either New York State or New York City Human Rights Law, or any other provision of law.
Extension of New York on PAUSE
- Executive Order 202.34 extends New York on PAUSE but, unlike previous executive orders, the specific extension is not to a specific date. Pursuant to Executive Order 202.34, Executive Order 202.31, which extended the provisions of Executive Orders 202.3, 202.4, 202.5, 202.6, 202.7, 202.8, 202.10, 202.11, 202.13, 202.14, 202.28 which each closed or otherwise restricted public or private businesses or places of public accommodation, and Executive Order 202.32 as modified by Executive Order 202.33 which required postponement, cancellation, or restriction on size of all non-essential gatherings of more than ten individuals, and which together constitute New York On PAUSE, is continued until and unless later amended or extended by a future Executive Order, provided, however
- As soon as a region meets the prescribed public health and safety metrics, as determined by the Department of Health, they will be eligible for Phase One reopening.
- Businesses or entities open pursuant to Department of Health guidance must be operated subject to the guidance promulgated by the Department of Health.
- As of May 28, 2020 the regions meeting the prescribed public health and safety metrics required for Phase One reopening are: Finger Lakes, Central New York, Mohawk Valley, Southern Tier, North Country, Western New York, Capital Region, Mid-Hudson, and Long Island. Such regions include the counties of Genesee, Livingston, Monroe, Ontario, Orleans, Seneca, Wayne, Wyoming, Yates, Cayuga, Cortland, Madison, Onondaga, Oswego, Fulton, Herkimer, Montgomery, Oneida, Otsego, Schoharie, Broome, Chemung, Chenango, Delaware, Schuyler, Steuben, Tioga, Tompkins, Clinton, Essex, Franklin, Hamilton, Jefferson, Lewis, St. Lawrence, Allegany, Cattaraugus, Chautauqua, Erie, Niagara, Albany, Columbia, Greene, Saratoga, Schenectady, Rensselaer, Warren, Washington, Dutchess, Orange, Putnam, Rockland, Sullivan, Ulster, Westchester, Nassau, and Suffolk. Any additional regions which meet the criteria after such date will be deemed to be incorporated into this Executive Order without further revision and will be permitted to re-open Phase One industries, subject to the same terms and conditions.
- It is interesting to note that unlike prior Executive Orders, Executive Order 202.34 does not give a set expiration date for New York on PAUSE. Executive Order 202.31, issued on May 14, 2020, specifically provided that New York on PAUSE “is hereby continued until 11:59 p.m. May 28, 2020 unless later amended or extended by a future Executive Order[.]” Executive Order 202.34 lacks a similar date certain and is open-ended, providing that New York on PAUSE “is continued until and unless later amended or extended by a future Executive Order[.]” While Executive Order 202.34 does not set a fixed end date to New York on PAUSE, one could argue that its last date would be June 27, 2020, the expiration date of Executive Order 202.34. That said, one should expect that future Executive Orders which address a Phase Two, Three and Four reopening issued prior to June 27, 2020 will also tackle the expiration date for New York on PAUSE.