New York Waives Unemployment Waiting Period, Modifies Certain Pre-Hire Requirements for Health Care and Childcare Workers, and Closes Malls and Places of Amusement

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Seyfarth Synopsis:  Governor Cuomo issued Executive Order (“EO”) 202.5 on March 18, 2020 that waives the unemployment waiting period, modifies certain pre-hire requirements for health care and childcare worker to ensure hospitals and other health care providers, as well as childcare facilities, can onboard staff to help alleviate the crisis, and mandates the closure of malls and places of amusement.

EO 202.5 will be in effect until April 17, 2020.

Unemployment

EO 202.5 waives the waiting periods under Subdivision 7 of section 590 and subdivision 2 of section 607 of the Labor Law for unemployment insurance claimants whose claims for unemployment insurance arise due to closure of an employer for a reason related to COVID-19 or due to a mandatory order of a government entity duly authorized to issue such order to close such employer, as of March 12, 2020.

Medical

EO 202.5 suspends or modifies certain regulations to allow physicians licensed and in good standing in other states (or in New York, but not registered in New York State) to practice in New York without civil or criminal penalty related to the lack of licensure or registration.  EO 202.5 also allows registered nurses, licensed practical nurses, nurse practitioners and physician assistants licensed and in good standing in any other state to practice in New York without penalty for lack of licensure. It also suspends or modifies certain regulations concerning credentialing of hospital staff to the extent necessary for those with professional competency and who are privileged and credentialed in another facility to practice in New York State. EO 202.5 further relaxes certain requirements for nursing homes, home health care workers, and providers of mental health services to facilitate the emergency response to COVID-19.  Hospitals and other medical industry professionals should review the Executive Order closely to assess adjustments to procedure as may be required and the specific regulations impacted by the Order, which are: Sections 6502, 6512-6516, 6524, 6541, 6905, 6906 and 6910 of the Education Law, Parts 59.8, 60, 60.8, 64 of Title 8 of the NYCRR, Sections 400.12, 403.3, 403.5, 405, 405.4, 405.5, 405.9, 405.14, 405.19, 405.22, 415.11, 415.15, 415.26, 425, 763.4(g)(2), 763.4(h)(7), 763.4(h)(8), 765.5(a)(2), 765.5(d)(1), 763.5(a) of Title 10 of the NYCRR, Sections 633.4, 633.8, 633.12, 633.14, 633.16, 633.17, 636-1, and 636-1.4 of Title 14 of the NYCRR, Sections 2999-h, 2999-j, and 2805-k of the Public Health Law, Section 461-k of the Social Services Law, and Sections 16.17, 33.02, 33.05 of the Mental Hygiene Law.

Childcare / School

In order to address childcare needs, the Order suspends Section 390-b of the Social Services Law and regulations at sections 413.4 and 415.15 of Title 18 of the NYCRR establishing background check requirements for child day care.  It also suspends Section 390 of the Social Services Law insofar as that section of law exempts school age child care programs operated by a school or entity with experience providing child care and located in a school providing elementary or secondary education from having to comply with the regulations of the office of children and family services.

Retail Shopping Malls

EO 202.5 requires that as of 8:00 p.m. on March 19, 2020, “all indoor common portions of retail shopping malls with in excess of 100,000 square feet of retail space available for lease” must close.  Stores within a shopping mall that have their own external entrances open to the public, that are separate from the general mall entrance, may remain open.  However, these stores are still subject to the requirements of Executive Order 202.3 concerning restaurants and bars. In addition, any interior entrances to common areas of the mall remain closed and locked.

Places of Public Amusement

EO 202.5 also requires that places of public amusement, whether indoors or outdoors, must also close to the public by 8:00 p.m. on March 19, 2020.  Places of public amusement include, but are not limited to, places with “amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children's play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.”  (This does not apply to public parks or open recreation areas).

Preemption of Localities and Political Subdivisions

Among other things unrelated to employment relationships, EO 202.5 decrees that “no locality or political subdivision” can issue a “local emergency order or executive order with respect to response of COV1D-19 without the approval of the State Department of Health.”  This is likely in response to New York City Mayor de Blasio’s statement that New York City could expect a “shelter in place” law similar to those being issued across California and is Governor Cuomo’s attempt to assure New York City residents that this will not occur.

Employer Takeaways:

With the COVID-19 landscape continuing to rapidly evolve, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these ever-changing provisions. To stay up-to-date on COVID-19 developments, click here to sign up for our daily digest.