Sunday evening, Governor Andrew Cuomo issued his fortieth Executive Order during this state of emergency, and his third Executive Order in three days. Executive Order 202.39 contains a few modifications or suspensions of laws as well as certain directives designed to address matters related to the COVID-19 crisis. These new actions cover certain election and education law matters as well as provide clarifications to previously issued directives. This Executive Order is effective from June 7, 2020 through July 7, 2020.
In addition to the new modifications and directives discussed below, Executive Order 202.39 also continues the suspensions and modifications of law, and any directives, not superseded by a subsequent directive, made by Executive Order 202.15, through 202.21, and including 202.29, as contained in Executive Order 202.29, until July 7, 2020. The copy of Executive Order 202.39 is here.
Clarification on Outdoor Dining
- Executive Order 202.38, issued on June 6, memorializes Governor Cuomo’s announcement that outdoor dining would be permitted in New York State. While Governor Cuomo’s announcement noted that this would occur during a region’s Phase 2 reopening, the actual directive contained in Executive Order 202.38 did not include this specific reference. As such, the directive contained in Executive 202.39 now modifies the outdoor dining directive of Executive Order 202.38 to explicitly limit outdoor dining to those regions that are in Phase 2 of the re-opening.
More Government Employees to Come Back to the Work Place
- Executive Order 202.4 required local governments to allow non-essential personnel to be able to work from home or take leave without charging accruals, and required such number of non-essential personnel to total no less than 50% of the total number of employees across the entire workforce of such local government or political subdivision. Executive Order 202.39 modifies this directive to apply only to local governments that have not met the prescribed public health and safety metrics to be eligible for Phase Two reopening. Moreover, Executive Order 202.39 provides that local governments in Phase Two regions may bring non-essential employees back to work beginning two weeks after such region meets the metrics to reopen Phase Two.
SUPENDED OR MODIFIED LAWS, REGULATIONS AND CODES
As with all prior executive orders, Executive Order 202.39 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 July 7, 2020. The laws and regulations modified or suspended under Executive Order 202.39, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
- Allows any absentee ballot for an election held on June 9, 2020 and received by mail in the office of the clerk of the school district or designee of the trustees or school board not later than June 16, 2020 to be canvassed for such election. No ballots for such election shall be accepted by the clerk of the school district or designee of the trustees or school board after 5 p.m. on June 9, 2020 except those received by mail in accordance with this provision. Any receptacle used for hand delivery of absentee ballots in such election shall be closed and removed at 5 p.m. on June 9, 2020. In addition the ballots in the receptacle shall remain unopened pending delivery of mailed ballots, and shall be removed and canvassed after 5 p.m. on June 16, 2020;
- Exempts school districts from completing annual professional performance reviews of classroom teachers and building principals during the 2019-20 school year without withholding any apportionment of funds for the general support of public schools for which a school district is otherwise entitled; and
- Allows a board of education or the trustees of a common school district, only upon specific agreement, to appoint on tenure those classroom teachers and building principals recommended by the superintendent of schools who are in the final year of the probationary period, have received the previous requisite annual professional performance review ratings pursuant to §3012-d of the education law and would have been in their discretion qualified for appointment on tenure based upon past performance, notwithstanding that their annual professional performance review had not been completed and they had not received the necessary effectiveness rating for the 2019-20 school year, or to allow such board of education or trustees of a common school district to extend such determination for an additional year.