A chief concern many employees across Western New York have as the novel coronavirus spreads is why they would be asked to work.

Some believe their employers, and what they do in the plants, are not essential. The employees said their employers should have closed Sunday, in response to Gov. Andrew Cuomo’s mandatory order that all non-essential businesses reduce their workforce by 100 percent to slow the spread of the virus.

Since then, dozens of employees have emailed WIVB Investigates asking why they are being asked to return to work this week.

“Management is all working from home, but they refuse to stop the line production,” said one worker of a local company.

“The employees are frightened and want to be home with our families, but someone else has decided that our families and our lives are not as important as others. Please help as this is literally a life and death matter.”

All together, employees named more than a dozen businesses, including liquor stores, spas, tire makers and debt collectors who called them in to work. Some may be essential, some may not, but there is a process each business should engage in get that determination from the state.

GM and Ford agreed to temporarily shutdown their plants to clean and sanitize their facilities. But others continue to remain open and want their employees to come to work.

But what is an “essential” business and how do employers – and their employees – find out?

Matthew Pelkey and Joseph F. Saeli, attorneys with Colligan Law LLP, have worked with employers to get determinations from the state on whether they can remain open for business. They said the state created a list of essential industries (that list is posted below), but there still is some uncertainty with the list itself.

“It’s an existential crisis for a lot of companies,” said Pelkey.

“Right now, it’s incumbent upon the businesses to communicate with their employees —for better or worse.”

The list released by the state is vague for some industries.

As a result, Empire State Development (ESD) developed a web page to help businesses with deciding whether they are essential.

“This is all so new and there is a lot of uncertainty,” Saeli said.   

“There is a process an employer can use to request a determination from Empire State Development about whether they are essential. I expect the listing on the web page will be changing.”

The guidance the state has provided on the website includes clear examples of essential industries, such as hospitals, farms, gas stations and laundromats.

But for those industries where it is less clear, ESD has a form that managers can fill out and email back, to which the state responds with a designation of essential or not within a few hours, the attorneys said.

So far, state officials have not released a list of specific businesses that have been deemed essential with a designation. News 4 has requested this information but the state has not responded.

“There is of course still some ambiguity,” Pelkey said.

“Unless it is unequivocally laid out in the guidance I would err on the side of seeking a designation request from ESD.”

For example, one of the firm’s clients is an aluminum extruder that supplies manufactures, including medical, with their products. The state responded within a few hours that the business would be deemed essential.

“The best course of action if there is any question is to complete the form contained in the guidance and send along to ESD,” Pelkey said.

Another industry that continues to operate as if it is essential are debt collectors.

Pelkey said there is a financial services category for essential businesses, but “it seems a stretch to fit debt collection or student loan and medical debt.”

“It would strain our credulity to say you’re essential without obtaining an affirmative request for designation from ESD,” he said.

Any business that has received a determination that deems it essential should post the certificate in a public area, so employees can review it.

Any business that is operating without a designation and is found to be non-essential could be fined and have their business licenses pulled.

As a result of increasing complaints from employees, State Attorney General Letitia James created a hotline that employees can call to report non-essential companies that continue to operate without a designation.

“Each and every one of us is called to work together and cooperate with emergency responders and public officials who are working hard to keep all New Yorkers safe,” James said.

“During this time, my office is closely monitoring the treatment of employees across the state.”

If you believe your employer is in violation of either existing labor laws or recently issued executive orders, please contact the attorney general at (212) 416-8700 or email Labor.Bureau@ag.ny.gov

“We urge employers to allow workers to work from home where applicable in accordance with all New York State executive orders,” James said.

Businesses can request designation as an essential business by filling out this form (click here) and returning it to the email ESD provides.  (All fields of this form must be completed to be considered for exempt designation.)

For purposes of Executive Order 202.6, “Essential Business,” means:

1. Essential health care operations including

  • research and laboratory services
  • hospitals
  • walk-in-care health facilities
  • emergency veterinary and livestock services
  • elder care
  • medical wholesale and distribution
  • home health care workers or aides for the elderly
  • doctor and emergency dental
  • nursing homes, or residential health care facilities or congregate care facilities
  • medical supplies and equipment manufacturers and providers

2. Essential infrastructure including

  • utilities including power generation, fuel supply and transmission
  • public water and wastewater
  • telecommunications and data centers
  • airports/airlines
  • transportation infrastructure such as bus, rail, or for-hire vehicles, garages
  • hotels, and places of accommodation

3. Essential manufacturing including

  • food processing, manufacturing agents, including all foods and beverages
  • chemicals
  • medical equipment/instruments
  • pharmaceuticals
  • sanitary products
  • telecommunications
  • microelectronics/semi-conductor
  • agriculture/farms
  • household paper products

4. Essential retail including

  • grocery stores including all food and beverage stores
  • pharmacies
  • convenience stores
  • farmer’s markets
  • gas stations
  • restaurants/bars (but only for take-out/delivery)
  • hardware and building material stores

5. Essential services including

  • trash and recycling collection, processing and disposal
  • mail and shipping services
  • laundromats
  • building cleaning and maintenance
  • child care services
  • auto repair
  • warehouse/distribution and fulfillment
  • funeral homes, crematoriums and cemeteries
  • storage for essential businesses
  • animal shelters

6. News media

7. Financial Institutions including

  • banks
  • insurance
  • payroll
  • accounting
  • services related to financial markets

8. Providers of basic necessities to economically disadvantaged populations including

  • homeless shelters and congregate care facilities
  • food banks
  • human services providers whose function includes the direct care of patients in state-licensed or funded voluntary programs; the care, protection, custody and oversight of individuals both in the community and in state-licensed residential facilities; those operating community shelters and other critical human services agencies providing direct care or support

9. Construction including

  • skilled trades such as electricians, plumbers
  • other related construction firms and professionals for essential infrastructure or for emergency repair and safety purposes

10. Defense

  • defense and national security-related operations supporting the U.S. Government or a contractor to the US government

11. Essential services necessary to maintain the safety, sanitation and essential operations of residences or other essential businesses including

  • law enforcement
  • fire prevention and response
  • building code enforcement
  • security
  • emergency management and response
  • building cleaners or janitors
  • general maintenance whether employed by the entity directly or a vendor
  • automotive repair
  • disinfection

12. Vendors that provide essential services or products, including logistics and technology support, child care and services:

  • logistics
  • technology support for online services
  • child care programs and services
  • government owned or leased buildings
  • essential government services

If the function of your business is not listed above, but you believe that it is essential or it is an entity providing essential services or functions, you may request designation as an essential business.

Houses of worship are not ordered closed however it is strongly recommended no congregate services be held and social distance maintained. 

Every business is strongly urged to maintain social distance to the extent possible, even if designated essential.