Executive Order 202.6, New York on PAUSE, which took effect on March 22, 2020, directed that all non-essential businesses statewide must close in-office personnel functions. The purpose of this “pause” is to slow the spread of the COVID-19 virus in an effort to reduce the spike in cases and the burden that would place on New York’s healthcare system.

The Order exempts certain essential businesses from the restrictions. It also provides for a business to seek an “essential” designation.

Essential businesses are defined as:

1. Essential Health Care Operations;
2. Essential Infrastructure;
3. Essential Manufacturing;
4. Essential Retail;
5. Essential Services;
6. News Media;
7. Financial Institutions;
8. Providers of basic necessities to economically disadvantaged populations;
9. Construction;
10. Defense;
11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential business.

The Order goes further by offering the opportunity for businesses to be deemed essential, by exempting businesses with only 1 employee, and by prohibiting businesses targeted by the March 15, 2020 Executive Order (bars, restaurants, gyms, etc.) from being designated essential businesses.

The Order further states that all businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures they can safely utilize. Each employer shall reduce their in-person workforce by 50%.

This Executive Order works in conjunction with legislation signed by the Governor providing paid sick leave for those subject to mandatory or precautionary order of quarantine or isolation due to COVID-19.  Every worker in New York State is guaranteed full job protection for the entirety of their quarantine or self-isolation up to 14 days. This in turn works in conjunction with the federal Families First Coronavirus Response Act (FFCRA), effective April 1, 2020, which requires employers to provide employees with paid sick leave and expanded family and medical leave for reasons related to COVID-19.

At this time, no State or Federal Law permits employees to refuse to attend work, or to perform work related duties, out of fear of contracting COVID-19. Employers must extend benefits, including paid leave, for the following reasons:

1. Is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. Has been advised by a healthcare provider to self-quarantine related to COVID-19;
3. Is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. Is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
5. Is caring for his or her child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19 related reasons; or
6. Is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Subjective fear of contracting COVID-19 does not qualify for paid leave or employment protection under New York State and Federal Law. However, Section (2) above does allow for a healthcare professional to advise an individual to self-quarantine, and an individual with a note from a medical professional would be protected by the act.