March 9, 2021

Yesterday the Governor signed the legislation (discussed below) into law, Chapter 71 of the Laws of 2021.

At this point, existing directives and Executive Orders are permitted to continue for 30 days. From there, EO’s and directives will be held to a higher standard and be subject to a 5-day notice/comment period by the Legislature. This can be waived only if an imminent threat to public health requires it, as certified by the Commissioner of Health. So what does this mean for us? Last week both the Telehealth and Background Check Executive Orders were continued until March 28.  However, based on the law passed yesterday, they are now effective for a total of 30 days from yesterday, or April 4, 2021 at 11:59 pm. 

NOTE:  We do not believe this change will necessarily result in an abrupt discontinuation of tele health and other flexibilities on April 4.  Instead, we continue to believe these decisions will depend on the status of the public health emergency and state leaders understanding and interpretation of federal and other guidelines governing resumption (or not) of face to face gatherings, etc.

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On Wed, Mar 3, 2021 at 8:55 AM Lauri Cole <lauri@nyscouncil.org> wrote:

NYS Council members,

Late yesterday, Senate Majority Leader Stewart-Cousins and Speaker Heastie introduced S.5357/A.5967 to terminate certain Executive Powers held by the Governor during the COVID-19 Pandemic Emergency, as granted in March. This legislation (attached) is expected to be taken up by the end of the week following the three day aging process.

Attached is the legislation which:

• Clarifies that any directive authorized pursuant to Chapter 23 of 2020 (establishing the Governor’s expanded authority), is permitted to continue 30 days
• Establishes a procedure for the Governor to extend or modify existing directives provided the purpose of extending or modifying the directive is to issue a public health directive related to managing the COVID-19 pandemic.  “Public health directive related to managing the COVID-19 pandemic” is defined as a directive certified in the sole discretion of the NYSDOH Commissioner to address the spread and/or reduction of the COVID-19 virus, facilitate vaccine distribution or administration, or require the use of face coverings
• The above process in bullet two includes 5 days notice prior to issuance. Such notice would need to certify that the order is needed to address public health and safety concerns related to the pandemic, and be submitted to the Legislature, or in the case of an order applying to a municipality, to the leaders of the municipality for review and comment
• Municipalities may adopt local executive orders unless they conflict with a statewide executive order
• If the Governor certifies that an extension is needed to address exigent circumstances related to imminent threat to public health or safety, the Governor may bypass the 5 day requirement, but must provide information certified by the Commissioner of NYSDOH and an opportunity to comment 
• No directive may be extended or modified more than once unless the Governor has responded to comments received by relevant Legislative Chairs or Municipal Leaders
• The Legislature may terminate, by concurrent resolution, executive orders at any time
• The Governor must provide on his website, in searchable format, within 15 days of the effective date of the legislation (effective date is immediately upon enactment) additional information detailing justification for emergency suspensions and directives

We will discuss this tomorrow morning during the NYS Council’s weekly Member Support and Public Policy call from 9-10 am.  Please see prior email (sent earlier today) regarding how to access the call.