New York’s Cluster Action Initiative: How to Determine if Your Business is “Essential” in a Red Zone

By Joseph S. Brown, Esq.

This alert has been updated to reflect recent changes to the NYS Cluster Initiative announced by Governor Cuomo on December 10, 2020.

By now, most New Yorkers are generally familiar with the state’s Cluster Action initiative, which directs the Department of Health to adopt new rules and restrictions directly targeted at COVID-19 hotspots that have cropped up throughout the state.  There are different restrictions in place depending on the color of the zone: Red, Orange, and Yellow.  Significantly, all non-essential businesses in the Red Zone, which do not meet certain criteria, are required to reduce in-person workforce by 100%.

With Governor Andrew M. Cuomo recently stating that portions of Erie County were on track to go into the Red Zone, it is important to assess whether your business is considered “essential” under guidance issued by Empire State Development Corporation (ESD).  This alert provides a brief overview of the Cluster Action initiative and how to determine if a business is considered essential in the Red Zone. 

Overview of the Cluster Zones

According to a press release issued by the governor’s office on October 21, 2020 (which may be found here), there are different “target metrics” for entering a cluster zone based on geographic area.   To see which areas of the state are currently designated as clusters, you can views maps of the Cluster Zones and search hot spot zones by address at the New York Forward website:

Below is a breakdown of the restrictions in each zone as identified in Executive Order 202.68.

Type of Activity




Non-Residential Gatherings


10 people maximum, indoors and outdoors

25 people maximum, indoors and outdoors

Residential Gatherings


10 people maximum, indoors and outdoors

10 people maximum, indoors and outdoors




20% weekly testing of in-person students and faculty


Non-essential businesses are closed

Gyms, fitness centers and classes operate at 25% capacity; barber shops, hair salons, personal care services can provide services so long as employees performing services are tested for COVID-19 on a weekly basis.


House of Worship

Lesser of:

25% of maximum capacity
10 people

Lesser of:

33% of maximum capacity
25 people

50% of maximum capacity


Takeout or delivery only

Outdoor dining, takeout or delivery only, 4 person maximum per table, and bars and restaurants close at 10:00 PM for on-premises consumption

Indoor and outdoor dining permitted, 4 person maximum per table, and bars and restaurants close at 10:00 PM for on-premises consumption


*Indoor dining in New York City is suspended beginning December 14.

**Schools may reopen if they follow new guidelines that require mass testing in schools before they reopen followed by vigilant symptom and exposure screening conducted daily.

Is My Business “Essential” in a Red Zone?

An essential business does not need approval or confirmation from any state entity to continue operating in a Red Zone.  Back in March 2020, ESD issued guidance on what types of business were essential under New York’s initial COVID-19 lockdown orders.  There is a high likelihood that if your business was essential before, it remains essential in a Red Zone.  But ESD’s guidance on essential businesses has evolved over time and should be checked on a regular basis. Just yesterday, ESD updated its updated guidance for determining whether a business is subject to a workforce reduction under the Cluster Action initiative, available here.  ESD also has a FAQ page available here

Given the steep penalties for non-compliance – up to $15,000 per day under Public Health Law – it is imperative for businesses to regularly check the latest guidance and contact ESD or experienced legal counsel if you have any questions.  If a business is not essential in a Red Zone, a shutdown of business operations may raise a host of other employment law issues such as layoffs, furloughs, leave issues, and accommodation requests.

Hurwitz & Fine continues to monitor and analyze these updates and advise employers on matters related to the coronavirus outbreak.  Please contact any member of the firm’s Labor & Employment team for guidance on these evolving issues at 716-849-8900, by e-mail, or visiting our website at

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