Updated ESD Guidance Says Attorneys May Be Considered Essential

April 14, 2020 | David S. Wilck | Avigael C. Fyman | Professional Liability

Several weeks into the coronavirus pandemic, New York businesses remain subject to the provisions of Executive Order No. 202.8, which required all employers to reduce their in-person workforces at any work locations by 100% starting on March 22. An exception to this restriction applies to “Any essential business or entity providing essential services or functions,” which is permitted to operate at the level necessary to provide such service or function.

These restrictions have led to most law firms shuttering their physical offices, while lawyers have striven to remain accessible to clients via telephone and e-mail. Both the State and Federal Courts in New York have severely limited the need for attorneys to appear in person, either by adjourning non-essential matters or by permitting virtual court operations, conferences, and hearings.

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”), addressing when and under what circumstances attorneys may be considered to be performing essential services or functions. The Guidance provides that “Lawyers may continue to perform all work necessary for any service so long as it is performed remotely. Any in-person work presence shall be limited to work only in support of essential businesses or services; however, even work in support of an essential business or service should be conducted as remotely as possible.”

Attorneys are providing critical advice to any number of essential businesses and operations, including hospitals, physicians, health care facilities, nursing homes, utilities and other essential infrastructure providers, manufacturers and retailers of essential supplies, media organizations and financial institutions, among others. These functions can and must continue. Nonetheless, even where supporting essential businesses and services, attorneys and law firms should limit the need to have any personnel working in the office as much as possible. Attorneys, paralegals and administrative support staff should be provided with the capacity to access computer systems and files securely and remotely. According to the ESD’s FAQ Responses, a non-essential closed business may have a single person pick up the mail or perform a similar routine function on a daily basis, so long as they will not be in contact with other people. However, should a law firm providing support to essential businesses or services require multiple employees to gain physical access to office spaces in order to manage files, provide IT support or perform other functions that cannot be done remotely, such employees should be put on a rotating or staggered schedule to promote social distancing and should employ appropriate cleaning and disinfecting protocols.  Finally, in accordance with Executive Order 202.16, as of April 15 at 8 p.m., businesses providing essential services, including law firms, are required to provide face coverings for any employees in the workplace who come in contact with members of the public.

If a law firm engages in activities that are not listed as essential under the Guidance, but which, the law firm believes, are in the best interest of New York State to have continue at full capacity in order to properly respond to the COVID-19 emergency, it may file a request for designation as an essential business on ESD’s website here.

While attorneys have a critical role to play in advising clients amidst the pandemic, perhaps the most critical thing that attorneys can do to help their clients is to play their part in flattening the curve by staying home.

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