March 19, 2020 UPDATE: Gov. Cuomo Mandates That 75% of Employees Must Work From Home


The last Executive Order posted says 50%, but Governor Cuomo announced today a “mandate” that 75% of employees must work from home.

Updates on the New York State Laws and Executive Orders

The last Executive Order from the Governor gives some clarification to his 50% (now 75%, see above) on-site workforce reduction order.

Executive Order 202.6 provides as follows:

All businesses and not-for-profit entities in the state shall utilize, to the maximum extent possible, any telecommuting or work from home procedures that they can safely utilize. Each employer shall reduce the in-person workforce at any work locations by 50% no later than March 20, 2020 at 8 p.m. Any essential business or entity providing essential services or functions shall not be subject to the in-person restrictions. This includes essential health care operations including research and laboratory services; essential infrastructure including utilities, telecommunication, airports and transportation infrastructure; essential manufacturing, including food processing and pharmaceuticals; essential retail including grocery stores and pharmacies; essential services including trash collection, mail, and shipping services; news media; banks and related financial institutions; providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses; vendors that provide essential services or products, including logistics and technology support, child care and services needed to ensure the continuing operation of government agencies and provide for the health, safety and welfare of the public;

Any other business may be deemed essential after requesting an opinion from the Empire State Development Corporation, which shall review and grant such request, should it determine that it is in the best interest of the state to have the workforce continue at full capacity in order to properly respond to this disaster. No later than 5 p.m. on March 19, 2020, Empire State Development Corporation shall issue guidance as to which businesses are determined to be essential.

Three issues raised here are important for your business:

  1. Does your business come under the “essential business providing essential services” exemption to this rule? The list is long and not well defined but if you do not see your industry listed, chances are you are not exempt and must reduce your on-site workforce to 25% of the company.
  2. If you are not sure, or believe you your business should be exempt, you may request an opinion from the Empire State Development Corporation and if they agree, you may be deemed essential. (We can help with this application if you need it.)
  3. What does 75% mean? It seems to be the work force at each location. So, if your company has multiple locations, your reduction at one location would not help keep your numbers above 25% at another location.

Reimbursement: Additional information on Payments Required by “Families First Coronavirus Response Act”

You should be able to apply for a tax credit for the payments under the new federal law. “In the case of an employer, there shall be allowed as a credit against the tax imposed by section 3111(a) or 3221(a) of the Internal Revenue Code of 1986 for each calendar quarter an amount equal to 100 percent of the qualified sick leave wages paid by such employer with respect to such calendar quarter.”
However, the amount of the permitted tax credit is limited to: The paid sick time payroll tax credit can be claimed on a quarterly basis, equal to 100 percent of the amount of sick leave wages paid. The credit is limited to $511 per day ($5,110 total) if an employee is taking time off to care for themselves or $200 per day ($2,000 total) if the sick leave is to care for an individual who’s quarantined or showing symptoms of COVID-19 or a minor child whose school is closed. The credit is refundable if it exceeds the amount the employer owes in payroll tax.

For employers who pay family leave wages under the Act, a separate payroll tax provision allows a 100 percent credit against the employer’s share of the payroll tax for each employee, limited to $200 per day, or a total of $10,000 per employee. The credit is refundable if it exceeds the amount the employer owes in payroll tax.

The exemptions and exceptions are complicated and you should speak to your accountant or tax professional. I am giving no tax advice here.

The attorneys in Forchelli Deegan Terrana LLP’s Employment & Labor practice group will continue to keep you updated on any changes to your requirements as an employer as updates become available. Should you have any questions, please do not hesitate to contact us. Battling the novel Coronavirus is difficult for everyone. We are here if you need us.

Gregory S. Lisi
Partner-in-Charge, Employment & Labor practice group | 516.248.1700