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Businesses seeking essential status

Although Gov. Andrew Cuomo has ordered all non-essential businesses to close temporarily to help slow the spread of the COVID-19 pandemic, state officials are considering applications from many firms to have their classification changed, at least partly, to the essential category.

For example, the Culver Road Armory location of Fleet Feet was not initially considered an essential business, but state officials granted permission on Tuesday afternoon to provide “contactless” curbside and home delivery of products ordered on the store’s website.

“Our doors are not open to the public and we are not seeing customers face-to-face,” said Ellen Brenner-Boutillier, vice president and chief financial officer of YellowJacket Racing and Fleet Feet Sports. “A lot of who we service are people who are on their feet — the health care workers, the delivery workers, people in grocery stores.”

Fleet Feet has about 40 employees at four locations. Unfortunately, 90 percent of them have been laid off, Brenner-Boutillier said.

Benjamin E. Mudrick, a partner at Harter Secrest & Emery LLP, said many clients have contacted him to ask for help in determining if they are included on the essential list and, if not, whether or not it makes sense to apply for an exception.

A list of frequently asked questions about essential businesses is available on the state Empire State Development website at: https://on.ny.gov/2JzFK5u. The online form to request being listed as essential is available at https://on.ny.gov/2wWuJbQ.

The form includes only about a dozen questions, including a brief description of the reason for the request.

The number of forms submitted and how many have been approved or denied was not available. ESD officials did not respond to a request for an interview about the waiver requests.

Although an attorney is not required to submit the form, Mudrick said it’s important to fill it out very carefully.

“I think it’s important to be thoughtful about how much you’re disclosing and how you describe the businesses that you’re performing by being too general or too specific,” Mudrick said. “I think it makes sense to be thoughtful that you are submitting an official document to the government, so it’s important that you present it in a thoughtful way that doesn’t create potential liability in the future.”

The list of essential industries continues to raise questions because the list has been changed several times.

“There are businesses who felt that they fell squarely on the list and then no longer feel that way,” Mudrick said.

For example, most of the construction industry was deemed essential at the outset, but many projects now are labeled non-essential.

The real estate industry actually had its “essential” status clarified, and then re-clarified, all within 24 hours.

On Wednesday night, an email from Empire State Development indicated showings, appraisals and inspections could resume for residential and commercial real estate.

By Thursday evening, after a backlash from agents themselves, ESD issued an updated clarification, stating that only virtual showings would be allowed.

“A real estate agent can walk through a house while the client is watching on the phone,” said Fred Corsi, president of Howard Hanna’s Western New York Region.

The new guidelines are just fine in this environment, Corsi believes.

“Selling real estate is not necessarily an essential function,” he said. “What we do think is essential is providing help to folks who need to buy or sell a house because their financial situation has changed, their familial situation has changed, their work situation has changed.

“We have told our agents that as independent contractors, make the choice you’re most comfortable and comply with the governor’s order and with CDC guidance.”

There is also confusion about businesses that are considered non-essential, but serve businesses that are considered essential.

“If you don’t clearly fall within one of the categories and you feel like it’s necessary to get the designation, you submit the questionnaire and you submit the information requested online,” Mudrick said. “From all accounts it’s uncertain if and when they’re ever going to respond to any of those. Some people may have gotten a quick answer and some people are still waiting to hear back at all.”

Brenner-Boutillier said she submitted the form twice because the first one didn’t get a very quick response.

If one company in a particular industry is granted a waiver it doesn’t necessarily mean similar companies will automatically qualify, Mudrick said.

“If (the state) gets a critical mass of requests from certain businesses where they realize that an adjustment needs to be made then they would be more likely to change the guidance. I think it takes more than one to change the guidance,” Mudrick said.

Businesses that are not considered essential can convert their operation to an essential classification and re-open without asking for permission, Mudrick said.

“If you can show that you are doing something that is essential, whether you just started doing it, or you’ve been doing it for years and years, I would be comfortable going ahead and relying on the guidance and starting to do that work without a specific exemption,” he said.

BLoudon@BridgeTowerMedia.com / (585) 232-2035

Includes reporting by Kevin Oklobzija.

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