The Shifting Rules on Virtual Meetings in (Post) Pandemic Times
August 23, 2021
Since Governor Cuomo’s announcement in June of “New York Forward” – a lifting of many COVID-19 pandemic-related restrictions- much has changed. The Delta variant and sluggish vaccination rates, as well as the lack of vaccines available for children under age 12, have stalled the return to normalcy. Besides the toll the pandemic has taken on many individuals and families, business and municipalities must figure out how to operate in the face of mixed messages from government, and constantly changing rules.
On June 25, 2021, Executive Order No. 210 announced the expiration of Executive Orders 202 and 205, which had declared a state of emergency for New York due to the COVID-19 pandemic, as well as implemented quarantine restrictions on travelers to New York State. The series of Executive Orders 202 through 202.111 had, among multiple other measures, postponed various in-person meeting requirements for certain business corporations, not-for-profit organizations and religious entities, as well as for state and local boards and agencies.
To clarify meeting requirements, particularly for annual meetings required under the Business Corporation Law, the Governor signed S8412 in June 2020. This bill amended the Business Corporation Law, Not-for-Profit Corporation Law, and the Religious Corporations Law to allow eligible entities to conduct business and hold board meetings virtually unless specifically restricted by certificate of incorporation or by-laws. These rules were to remain in effect until the end of the declared emergency in New York.
In April of this year, S3917A amended this law further, extending the provisions allowing for virtual meetings to either December 31, 2021 or the end of the declared emergency, whichever is later. While currently the COVID-related emergency declaration has been lifted in New York, signaling that December 31, 2021 will be the end of loosened requirements for in-person meetings, the rise in Delta variant-related reinstituted COVID precautions indicates the potential for more amendments and delays in getting back to normal.
While the amendments to business, not-for-profit, and religious corporation law are certainly helpful, they do not affect requirements for in-person meetings in many other contexts, such as municipal boards and committees, including zoning boards, school boards, and numerous other local groups. These boards throughout the state adapted quickly to virtual meetings, as permitted under several subparts of Executive Order 202, incorporating required public access and input, at a time when local governments were struggling to cope with the pandemic. Now, with the expiration of the state of emergency, these boards have had to pivot just as quickly to resume in-person meetings, at a time when community transmission rates are increasing throughout the state.
On July 27, 2021, the CDC took a step back and issued guidance calling for fully-vaccinated individuals to resume masking indoors in areas of high transmission (at this point, most of the country) in response to the Delta variant. Starting this week, the NYC Health Department is requiring that people over the age of 11 show proof of vaccination in order to enter restaurants, theaters and gyms. The State Health Department has yet to change requirements, but has stated it’s reviewing the CDC recommendations. The WDNY has not waited for the state to issue guidance, but re-instituted a mask mandate for all persons, regardless of vaccination status, entering U.S. Courthouses in western New York as of August 3, 2021. And after only a few weeks of allowing adults to unmask with proof of vaccination, on August 12, 2021, the Unified Court System followed suit, announcing that masks would be required in the public parts of court buildings, regardless of vaccination status.
With the extreme fluctuations in direction, and lack of clarification or consistency from our top government officials, it is tempting to conclude that some of the pandemic era changes to the way businesses and other entities operate could and should become permanent. Businesses and state and local agencies have had to invest in technology and training to enable their employees to work from home, and to conduct business virtually. There is no reason this investment should go to waste when it could increase efficiencies in the post-COVID era.
On the whole, many businesses have adapted well to the challenges brought on by the pandemic. Companies have learned there are benefits to employee fluency with Zoom, Teams and other videoconferencing platforms. Some local municipal agencies reported greater public attendance and participation at virtual meetings. Further, many believe that remote and hybrid work is the new normal. There is no compelling reason that some of the changes allowed by Governor Cuomo’s Executive Orders should not be adopted on a permanent basis.
In the meantime, it is more important than ever for all types of entities to review the rules governing their own in-person meetings. Some of the rules authorizing virtual meetings will inevitably be repealed, or will expire, and entities need to stay on top of compliance for these activities.
Finally, New York will be under new leadership this week. It’s hard to predict at this point how the state will continue to balance the rise of COVID cases due the Delta variant with continued recovery from the pandemic.
Erin F. Casey is of counsel with the law firm of Adams Leclair LLP, and focuses on commercial and contract litigation. Erin can be reached at firstname.lastname@example.org. Emily Uhlig is an associate attorney with Adams Leclair LLP and can be reached at email@example.com.