Updated ESD Guidance on Essential Business and Construction

On April 9, 2020, the New York State Empire State Development (ESD) updated its “Guidance for Determining Whether a Business Enterprise is Subject to Workforce Reduction Under Recent Executive Orders” (the “Guidance”).

In the updated Guidance, ESD adds two new essential business categories, provides additional details regarding which activities constitute “essential construction,” expands the list of non-essential businesses that are prohibited from seeking a designation as an essential business and sets forth additional examples of essential business in the prior categories of manufacturing, retail, healthcare and essential services.

A copy of the full updated Guidance may be found here.

With respect to construction, the updated Guidance now itemizes as essential construction that which is “necessary to protect the health and safety of occupants in a structure” and construction for “existing (i.e., currently underway) projects of an essential business” (emphasis added). Given the additional detail in the updated Guidance on which businesses are deemed “essential,” certain projects may proceed if already underway, but only in accordance with the safety provisions of the Guidance. If a project is located within New York City, the Department of Buildings has issued a number of bulletins with respect to ongoing projects for essential business that may be found here.

In addition, public or private schools are now included within the list of essential construction that may proceed, in addition to roads, bridges, transit facilities, utilities, hospitals or healthcare facilities, and homeless shelters. The updated Guidance also provides detail on construction of affordable housing (which is included within essential construction) as work where “either (i) a minimum 20% of the residential units are or will be deemed affordable and are or will be subject to a regulatory agreement and/or a declaration from a local, state, or federal government agency or (ii) where the project is being undertaken by, or on behalf of, a public housing authority.”

Finally, construction in the energy industry is specifically listed, with the detail of what energy-related construction may proceed, which can be found here.

The attorneys of Rivkin Radler are available to assist you with questions you may about the impact of the COVID-19 outbreak on not only your construction projects, but also on your business, employment practices and you personally. Please visit our Coronavirus Resource Center or contact any of our attorneys.