By MICHAEL H. SAHN //
Federal and state governments have issued numerous emergency executive orders to cope with COVID-19. Simply keeping track of these orders is a full-time job; compliance poses unique challenges for individuals, businesses, industries, not-for-profit institutions, even local governments.
Not all the orders have been consistent, or coherent. In many instances, contradictory orders have created confusion, discontent and, ultimately, a failure to achieve much of anything.
In some cases, in some jurisdictions, private legal actions have challenged the validity of emergency orders. Actions were commenced to challenge the Michigan governor’s authority to issue emergency closure orders.
In other situations, individuals and groups have openly defied governmental orders. Hillsdale College, also in Michigan, recently held a commencement ceremony, despite the state’s prohibition. In Georgia, the state government has challenged the authority of local governments to restrict or direct actions, such as mask wearing.
Adding to the complexity of the pandemic response, the private sector – on its own – is beginning to impose restrictions that affect not only employees and service providers, but the public.
Delta Airlines has imposed a requirement that passengers either wear a mask or undergo a screening process that clears them to travel without one. Other airlines have imposed different regulations. Many of the largest retailers – including Walmart, Costco, CVS, Kroger and Starbucks – now require masks in their stores.
Essentially, the private sector is enacting private legislation to supplement – or in the absence of – governmental regulation.
It is not surprising that governmental and private requirements change almost daily, since the spread and impact of COVID-19 are also changing. The overall response to the pandemic – incoherent and often ineffective – is also not surprising, given the contradictory array of orders and directives.
What all this means is that every business, institution and organization must have its own compliance plan, monitoring emergency orders and directives and adjusting in real time. Staying current, and ensuring a continuity of services, means continuous analysis of the rapid-fire orders.
On March 7, Gov. Andrew Cuomo invoked his emergency powers to declare a Disaster Emergency, in response to the threat COVID-19 posed to the health and welfare of New York’s residents and visitors. This declaration gave the governor the authority to issue executive orders to temporarily suspend any statute, local law, ordinance, rule or regulation if compliance would hinder the health-emergency response.
The declaration also gave the governor the authority to issue affirmative directives by executive order to cope with the emergency, and to provide procedures reasonably necessary to enforce those directives.
The March 7 declaration included the first of the governor’s pandemic-related emergency orders. As of this week, he has issued 56 executive orders in response to COVID-19, almost three each week since March 7, covering virtually every area of law and commerce.
Most familiar are the orders regarding essential and non-essential workers, the closure or suspension of businesses and schools, dining and hospitality restrictions, and public mask requirements.
Some executive orders have directly affected local government operations – postponing local elections, suspending open-meetings laws and permitting government meetings via videoconferencing.
And some may effectuate long-term changes. Even as other emergency orders are rescinded throughout our phased reopening, orders relating to public meetings and hearings will likely lead to long-term changes in the way public business is conducted; virtual meetings are likely here to stay.
Also here to stay are executive orders themselves. Certain with the reopening is that they will continue and likely increase; in effect, this is the new legislative process. Still to come are executive orders on reopening schools and other indoor facilities.
In the end, compliance with many executive orders is a matter of private and public buy-in. The penalties for noncompliance can be significant, such as the loss of a liquor license, but there are not enough available resources to monitor compliance with every new order, every day, across the entire state.
It’s concerning that certain groups seem to casually and perhaps purposely disregard certain public-safety executive orders, with far-ranging consequences for many. Clear, consistent messaging from government, creating clear understanding for everyone affected by an emergency order, is the key to compliance.
Michael H. Sahn, Esq., is the managing member of Uniondale law firm Sahn Ward Coschignano, where he concentrates on zoning and land-use planning, real estate law and transactions, and corporate, municipal and environmental law. He also represents the firm’s clients in civil litigation and appeals.