{"id":10808,"date":"2026-05-28T13:59:36","date_gmt":"2026-05-28T13:59:36","guid":{"rendered":"https:\/\/usatrustedlawyers.com\/blog\/guidance-for-determining-whether-your-business-is-essential-or-critical-under-executive-orders-related-to-coronavirus-and-relevant-employment-law-considerations\/"},"modified":"2026-05-28T13:59:36","modified_gmt":"2026-05-28T13:59:36","slug":"guidance-for-determining-whether-your-business-is-essential-or-critical-under-executive-orders-related-to-coronavirus-and-relevant-employment-law-considerations","status":"publish","type":"post","link":"https:\/\/usatrustedlawyers.com\/blog\/guidance-for-determining-whether-your-business-is-essential-or-critical-under-executive-orders-related-to-coronavirus-and-relevant-employment-law-considerations\/","title":{"rendered":"Guidance for Determining Whether Your Business Is \u201cEssential\u201d or \u201cCritical\u201d Under Executive Orders Related to Coronavirus and Relevant Employment Law Considerations"},"content":{"rendered":"\n
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May 15, 2020 Update.\u00a0 On May 14, 2020, New York Governor Andrew Cuomo signed an Executive Order<\/a> extending New York on PAUSE through May 28, 2020.\u00a0 This Executive Order also sets forth the parameters by which certain regions of New York State may begin to open as of 12:01 a.m. on May 15, 2020.\u00a0 Our post, N.Y. Governor Cuomo Permits Certain Regions of New York State to Reopen While Others Remain on PAUSE explains this Executive Order in further detail.<\/p>\n

April 16, 2020 Update.\u00a0 On April 16, 2020, New York Governor Andrew Cuomo announced an extension of the New York State on PAUSE executive order, including the prohibition on non-essential businesses having employees report in person to the workplace, for an additional two weeks through May 15, 2020.<\/p>\n

April 10, 2020 Update.\u00a0 On April 9, 2020, New York updated its guidance<\/a> as to which businesses are essential for purposes of having employees report in person to the workplace.\u00a0 The updated guidance provides additional details for both essential and non-essential businesses.\u00a0 Our post on New York\u2019s updated guidance can be found here.\u00a0 As the COVID-19 situation continues and guidance evolves, employers should monitor the relevant federal, state and local orders and guidance.\u00a0<\/p>\n

April 7, 2020 Update.\u00a0On April 6, 2020, New York Governor Andrew Cuomo announced<\/a> an extension of the New York State on PAUSE executive order, including the prohibition on non-essential businesses having employees report in person to the workplace, for an additional two weeks through April 29, 2020.\u00a0<\/p>\n

April 3, 2020 Update. On March 28, 2020, the Cybersecurity and Infrastructure Security Agency (\u201cCISA\u201d), a federal agency overseen by the Department of Homeland Security, issued updated advisory guidance, drafted in collaboration with other federal agencies, state and local governments, and the private sector, regarding an \u201cEssential Critical Infrastructure Workforce.\u201d\u00a0 Although CISA\u2019s guidance is still \u201cadvisory in nature\u201d and is \u201cnot . . . a federal directive or standard,\u201d it may be helpful to employers in determining whether they are \u201cessential\u201d or \u201ccritical\u201d under applicable state local executive orders. \u00a0Also on March 28, 2020, New York Governor Cuomo modified<\/a> his Executive Order to clarify that \u201conly certain construction is considered exempt from the in-person restrictions\u201d in place in New York State.\u00a0 New York subsequently issued additional guidance<\/a> regarding construction projects and updated FAQs<\/a> regarding companies that support construction and other projects within the energy industry.<\/p>\n

March 25, 2020 Update.\u00a0 New York issued additional guidance, in the form of frequently asked questions<\/a>, regarding both \u201cessential\u201d and \u201cnon-essential\u201d businesses.\u00a0 The guidance clarifies that essential businesses are required to \u201cutilize telecommuting or work from home procedures to the maximum extent possible\u201d even for essential products and services and roles that support essential products or services (e.g.<\/em>, human resources, accounting, legal).\u00a0 The guidance also clarifies that non-essential businesses may have \u201c[a] single person attending a non-essential closed business temporarily to perform a specific task,\u201d such as collecting the mail, as long as they will not be in contact with other people.\u00a0 The New York State Department of Labor also posted a webpage<\/a> with links for employees to submit complaints related to COVID-19 regulations, such as being directed to work at a non-essential business or an employer\u2019s failure to pay required sick leave.\u00a0 These new developments are incorporated within the below post.<\/p>\n

March 24, 2020 Update.\u00a0 Today, two additional pieces of guidance were issued concerning the determination of whether businesses are \u201cessential.\u201d\u00a0 First, U.S. Treasury Secretary Steven Mnuchin issued a statement<\/a> endorsing and elaborating on the federal guidance issued by the Department of Homeland Security that identified financial services sector workers as \u201cessential critical infrastructure workers.\u201d\u00a0 Second, California issued additional guidance<\/a> in the form of frequently asked questions relating to its statewide \u201cstay-at-home\u201d order that addresses the essential business determination.\u00a0 These new developments are incorporated within the below post.<\/p>\n

The Coronavirus pandemic continues to spread rapidly and at least a dozen states (with more likely to follow suit) have issued orders instructing residents to stay at home and prohibiting \u201cnon-essential\u201d or \u201cnon-critical\u201d businesses from having employees report to the workplace in-person.\u00a0 Although these orders often provide some guidance regarding whether a business should be considered \u201cessential\u201d or \u201ccritical,\u201d the burden generally is on the businesses to determine whether they qualify as \u201cessential\u201d or \u201ccritical.\u201d\u00a0 Because the specifics of each business and its employees are different, businesses may want to obtain legal advice regarding this determination.\u00a0 Additionally, even if a business correctly determines it does meet the threshold for designation as \u201cessential\u201d or \u201ccritical,\u201d the business then needs to determine which of its employees should report to the workplace and how to assist with their safe passage to the workplace.\u00a0\u00a0
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Because there are various state and local orders currently in place, which are being modified in response to ongoing developments, and additional orders being issued daily, businesses should be sure to regularly review the guidance for updates and changes.\u00a0
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Federal CISA Guidance Relied on by Certain States
The Cybersecurity and Infrastructure Security Agency (\u201cCISA\u201d) is a federal agency overseen by the Department of Homeland Security.\u00a0 CISA has issued general guidance designating 16 critical infrastructure sectors<\/a>:\u00a0 chemical; commercial facilities; communications; critical manufacturing; dams; defense industrial base; emergency services; energy; financial services; food and agriculture; government facilities; healthcare and public health; information technology; nuclear reactors, materials and waste; transportation systems; and water and wastewater systems.\u00a0 In addition to its general guidance, CISA issued Coronavirus-specific guidance on March 19, 2020<\/a>.\u00a0 While state and local governments are \u201cultimately in charge of implementing and executing response activities,\u201d CISA\u2019s guidance is informative, and some states reference CISA\u2019s guidance in their mandates.\u00a0
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CISA\u2019s Coronavirus-specific guidance states, among other things, that:<\/p>\n