COVID-19 in New York — An Update

By Arnold Hauptman, General Counsel, UFOLI New York

New York State, and to a large extent New York City, Long Island, and the sur-rounding suburbs, have come a long way in combating the COVID-19 pandemic. But we are not home free, yet.

In my last guest article in Avanti, I reported that New York State experienced almost 1,00 deaths from the virus on April 10. Due to Governor Andrew Cuomo’s lockdown orders, I am happy to report that a little more than two months later, only 17 deaths were reported in June in the entire state. More good news is that less than 1 percent of over 60,000 persons being tested were positive for the virus. Still, the financial and emotional impact on our members in New York has been painful, mitigated somewhat by the PPP loans that many have obtained.

Long Island, Westchester and other nearby suburbs are in Phase 2 of a reopening, while New York City remains in Phase 1 of the goal of Phase 4 that must be reached before a return to full normalcy can be announced. No one knows when that will be. Could be years, according to the experts. In the meantime, so-cial distancing, the wearing of masks, and continued testing are still mandated.

For sure, there is no state in the country that is totally free from the pandemic and, as opposed to New York, some 20 states at this time are expe-riencing upward trends in infections, hospitalizations, and deaths. What a shame. In some of these states—like Texas, Florida, California, and others—7-Eleven stores are a major presence. We are warned that even New York, if not careful, can suddenly and again find itself in a full lockdown for non-essential businesses. In such an event many stores would totally close, with others resorting to limited hours.
Unfortunately, regardless of the strides New York State has made somewhat mitigating the effects of the virus, problems persist in many stores with respect to cleaning and/or staffing during nighttime hours. As a result, as of this writing, approximately 70 stores in the UFOLINY area remain closed during nighttime hours.

I have heard from a few franchisees that local management is pressuring these limited-hour stores to resume 24/7 operation despite continuing conditions that make it unsafe or impossible to do so. In response to an inquiry by Yousaf Naseer, UFOLINY president, as to whether or not those franchisees who have totally closed their stores or are operating with limited hours can continue to do so, I replied: “Of course, this is a business decision that each franchisee must independently make. However, there is no question that COVID-19 is still a very serious health and safety threat, and will be for the foreseeable future—at least several more months, or even longer. Clearly, the virus is not within the con-trol of either 7-Eleven or franchisees and, under such circumstances, if a franchisee determines that his or her store should be closed or operating under reduced hours to accommodate cleaning or because of short staffing, every Store Agreement provides that under such circumstances, neither party will be liable to the other for damages and no valid breach notices can be issued. Accord-ingly, no franchisee should be pressured into operating his or her store contrary to the health and safety of employees or customers.”

I note parenthetically that such pressure may well lend support to the notion that franchisees are really employees under the control of 7-Eleven with respect to day-to-day operational decisions, rather than independent contractors.

To add fuel to this fire, and to make operations by limited-hour stores even worse, McLane has announced that all deliveries will be made during nighttime hours, refusing to accommodate these franchisees who are requesting the continuation of daytime deliveries to their stores.

This issue is still not resolved and the UFOLINY Board has implored McLane to reconsider this very unreasonable and arbitrary decision, and has also reached out to SEI upper management to use its considerable influence to make certain that McLane honors the reasonable requests for such daytime deliveries to stores that are simply not open at night. This is another matter in which SEI should and must support its franchisees.

I remain hopeful that the “silver lining” to this pandemic, which I referred to in my last article, will restore the communications and collaborations that SEI and franchisees enjoyed in the past.