"Social distancing" may be familiar parlance among epidemiologists, but the term is relatively novel to those of us who do not study infectious diseases. A new virus, previously unknown to human populations, has swept across the world, endangering entire populations. Governments around the globe have reacted with different measures designed to contain the spread of the SARS-CoV-2 virus and the COVID-19 disease.

As of the preparation of this article, New York state unfortunately holds the record of the most reported COVD-19 cases in the United States. In an effort to contain the virus, the legislature and the governor have put pen to paper, so to speak, to address the needs of the state's population, with the objective of "flattening the curve" to reduce the daily incidence of new cases. While not constituting a quarantine per se, the governor's actions nevertheless have imposed significant restrictions on New Yorkers, their livelihoods, and their freedom of movement. What legal standards apply to these restrictions, and do the restrictions go too far in the name of protecting the public from an unprecedented public health emergency?

The Governor's Executive Orders

Earlier this month, Gov. Andrew Cuomo issued a series of executive orders, starting with a declaration of statewide disaster emergency. Becoming increasingly encompassing and prophylactic, the executive orders collectively have directed the cancellation or postponement of social gatherings or events; closure of gyms, fitness, centers, movie theaters, and places of public amusement; and cessation of on-premises food and beverage service in bars and restaurants. On March 20, 2020, the governor announced his "New York State on PAUSE" order, touted on the state's website as a "10-Point Policy that Assures Uniform Safety for Everyone."

The New York state on PAUSE executive order mandates a 100% reduction of the in-person workforce of all non-essential businesses and not-for-profit entities. Any business that violates the governor's order shall be subject to a fine as prescribed in the Public Health Law §12. In a series of rapid-fire orders, the governor thus effectively shut down New York, with the exception of business and gatherings considered essential. What followed was not unexpected: Massive job layoffs and concern for widespread business failures as the economic realities of New York on PAUSE took hold. Did the governor act within his lawful powers? Some might think the question should be asked; others no doubt are just grateful that the governor acted as he did. The author does not seek to challenge the governor's leadership, but rather to commend it while examining evolving legal questions that will need to be addressed as we deal with infectious disease epidemics.

Executive Law §29-a

On March 2, 2020, the legislature overwhelmingly voted to amend New York Executive Law §29-a to give the governor extraordinary power to do virtually anything he deems necessary to contain the coronavirus. The governor must use his expanded powers "in the interest of the health or welfare of the public," and only to the extent "reasonably necessary to aid the disaster effort." L 2020, ch 23, §(2)(b). Executive orders so issued may not be effective for more than 30 days, but the governor may extend his orders for additional thirty-day periods "upon reconsideration of all of the relevant facts and circumstances." Id. §2(2)(a). The governor's broad new authority will expire on April 29, 2021 (see L 2020, ch 23, §4), and is subject to legislative override: The legislature may "terminate by concurrent resolution executive orders issued under this section at any time" (id. §2(4)).