I hope you are enjoying your Saturday afternoon. Governor Andrew Cuomo posted Executive Order 202.19 last evening. This Executive Order, his twentieth (20th) one issued during this state of emergency, modifies or suspends several New York statutes, laws, codes, rules and regulations as well as sets forth several directives, all of which are designed to combat the COVID-19 crisis. This Executive Order is effective from April 17, 2020 through May 17, 2020. A copy of Executive Order 202.19 accompanies this e-mail.
NEW AND EXTENDED DIRECTIVES
Governor Cuomo has issued and modified certain directives in Executive Order 202.19 to stem the COVID-19 virus throughout New York State. In particular, Governor Cuomo uses these directives to consolidate state authority over COVID-19 testing and public health measures across New York State as well as institute certain enforcement measures.
COVID-19 Testing Measures
- Executive Order 202.19 mandates that the Health Department establish a single, statewide coordinated testing prioritization process for COVID-19. This process requires that all New York public and private laboratories conducting COVID-19 diagnostic testing to complete such COVID-19 diagnostic testing only in accordance with the process developed by the Health Department. These laboratories shall prioritize testing of entities or individuals as directed by this coordinated statewide process. Any such laboratories may not, without an exemption from the Health Department, enter into an agreement that would reserve testing capabilities for any private or public entity and therefore impede the Departments’ ability to prioritize and coordinate COVID-19 testing in New York State. Any violation of this directive may result in a civil penalty not to exceed $10,000 or three times the value of such testing provided in violation of the directive. Furthermore, Executive Order 202.19 empowers the Health Commissioner to revoke any operating certificate or license of such laboratory who violates the directive.
Public Health Measures
- Executive Order 202.19 solidifies New York State’s Health Department as the overriding authority when it comes to public health measures in New York State. Executive Order 202.19 directs that no local government or local department of health can take any actions that could affect public health without consulting with the state Health Department. In addition, Executive Order 202.19 provides that no local government official shall take any action that could impede or conflict with any other local government actions, or state actions, with respect to managing the COVID-19 public health emergency
Enforcement of Nursing Home Notification Requirement
- As I noted in my previous alert, Executive Order 202.18 issued a directive that any skilled nursing facility, nursing home, or adult care facility licensed and regulated by the Health Commissioner is obligated to notify family members or next of kin if any resident tests positive for COVID-19, or if any resident suffers a COVID-19 related death, within 24 hours of such positive test result or death. Executive Order 202.19 modifies the directive contained in Executive Order 202.18 to institute a penalty for non-compliance. Now, non-compliance of this directive shall result in a penalty of $2,000 per violation per day, as if it were a violation of section 12 of New York State’s Public Health Law, and any subsequent violation shall be punishable as if it is a violation of section 12-b of the Public Health Law.
SUPENDED OR MODIFIED LAWS
Executive Order 202.19 suspends or modifies one New York law through May 17, 2020. In this instance, this Executive Order suspends or modifies subdivision one of Section 860-b of the Labor Law. This provision of New York Labor Law provides that an employer may not order a mass layoff or employment loss unless the business provides ninety (90) days’ notice to the affected employees as well as certain other persons and entities. Now, Executive Order 202.19, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary
- Allows a business that receives federal Paycheck Protection Program funding and subsequently rehires employees, to provide the notice required under Labor Law section 860-b(1) as soon as practicable but not necessarily within ninety days, provided that a business that receives federal Paycheck Protection Program funding had provided the notice required under this section when it initially laid off employees.
The copy of Executive Order 202.19 that accompanies this e-mail specifically identifies the applicable laws impacted under these provisions.