The New York Health and Essential Rights Act (HERO Act) was signed into law by Governor Andrew Cuomo on May 5, 2021. The HERO Act added two new sections to the New York Labor Law: Section 218-b, requiring all private employers to adopt airborne infectious disease prevention plans and standards; and Section 27-D, requiring private employers with 10 or more employees to allow the creation and administration of joint labor-management workforce safety committees. Governor Cuomo approved clarifying amendments (the Amendments) to the HERO Act on June 14, 2021. The HERO Act and its Amendments impose significant workplace health and safety obligations on New York employers.Read More
On June 21, 2021, the Occupational Safety and Health Administration (OSHA) adopted its COVID-19 Healthcare Emergency Temporary Standard (ETS). Employers providing health care services will be required to comply with new COVID-19 specific standards to protect their workforces. The ETS focuses on protections for unvaccinated or otherwise “at-risk” workers, who are described as those that “cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.” The ETS encourages vaccination by requiring employers to provide reasonable time and paid leave for employees to receive vaccinations and recovery from any side effects.Read More
Patients’ access to health information through their smartphones creates compliance risk for physicians
The Department of Health and Human Services has set forth new rules to provide patients with smartphones easier access to their health information and to establish exceptions to the information blocking provisions of the 21st Century Cures Act (“Cures Act”). As health care becomes more about the customers, the customer, also known as the patient, wants to know more about their health and how they can improve it. Physicians are expected to enhance their electronic health records (“EHR”) to improve interoperability with patients’ smartphones while preventing inappropriate disclosures of information.Read More
By: Robert Braumuller, Esq., Zaina S. Khoury, Esq. and Nina Schuman-Bronson, Esq., MPH
This article appeared in the New York Law Journal on September 24, 2020.
On July 27, the Massachusetts-based biotechnology company, Moderna Inc. (“Moderna”), announced the commencement of the Phase 3 study of its mRNA vaccine candidate (mRNA-1273) against COVID-19. Phase 3 clinical trial of investigational vaccine for COVID-19 begins, National Institutes of Health (Jul. 27, 2020), https://www.nih.gov/news-events/news-releases/phase-3-clinical-trial-investigational-vaccine-covid-19-begins. With Moderna as the regulatory sponsor and provider of the investigational vaccine for the trial, the Biomedical Advanced Research and Development Authority (BARDA) within the U.S. Department of Health and Human Services’ (HHS) are providing funding for the trial. Id. This trial is the first of the vaccine efficacy trials to be implemented under “Operation Warp Speed”, which is a collaboration of multiple agencies led by HHS with the goal of fast-tracking the development, manufacturing and distribution of biologics, drugs, and devices for COVID-19. Id. There are approximately 30,000 adult volunteers expected to be enrolled in the study at U.S. clinical research sites. Id. As of September 8, 2020, the World Health Organization reports that there are 34 candidate vaccines in clinical evaluation and 145 candidate vaccines in preclinical evaluation. Draft landscape of COVID-19 candidate vaccines, World Health Organization (Sep. 8, 2020), https://www.who.int/publications/m/item/draft-landscape-of-covid-19-candidate-vaccines.Read More
On May 7, 2020, Governor Cuomo announced that the prohibition on both residential and commercial evictions will be extended by sixty (60) days.
The initial moratorium on evictions that took effect on March 22, 2020 was imposed for ninety (90) days and was set to expire on June 20, 2020. Recently however, the Governor has been under significant pressure from tenant advocacy groups to extend additional relief to tenants. Phrases such as “tidal wave of evictions” have been used to describe what tenant advocacy groups see as a veritable sword of Damocles hanging over the heads of tenants who cannot, or do not, keep up with rent payments during the COVID-19 pandemic. Conversely, most landlord advocacy groups have cautioned against drastic governmental actions that may endanger the ability of landlords to provide services to their tenants, many of those services being government mandated. The moratorium on evictions will now expire on August 19, 2020.Read More
Although the timing, scope, and conditions for New York businesses to reopen currently remain uncertain, there is no doubt that once Governor Cuomo rescinds Executive Order 202.8 (which ordered 100% on-site workforce reduction for all non-essential businesses in New York) all businesses that are able to do so will reopen. Moreover, it seems apparent that reopening will occur long before the general threat of COVID-19 infections has completely subsided. That being the case, employers across New York will be facing some significant new issues and challenges as they resume operations while taking steps necessary to protect the health and safety of their employees. This is a brief overview of what steps employers should consider taking now as they prepare to reopen their workplaces, and of information that is available to employers to assist them in doing so.Read More
The retirement account has long been an advantageous tool for tax and estate planning. Workers could defer taxes on earnings by contributing to these accounts and deferring tax on distributions until they retired. Beneficiaries who inherited retirement accounts were able to “stretch” distributions over their lifetimes and therefore defer the income taxes resulting from such distributions. Well-drafted trusts which were named as beneficiaries of retirement accounts were also entitled to stretch distributions over the lifetime of the trust beneficiary. However, the Setting Every Community Up for Retirement Enhancement Act (the “SECURE Act”), enacted at the end of 2019 severely limits the ability of many individual and trust beneficiaries to defer distributions from inherited retirement accounts.Read More
On April 7, 2020, new tenant friendly legislation was introduced in the New York State Senate and Assembly. Titled the “New York Tenant Safe Harbor Act,” it would prohibit a landlord from evicting a tenant due to that tenant’s failure to pay rent for a period (i) commencing with the Governor’s declaration of a State of Emergency on March 7, 2020 and (ii) ending on a date six (6) months after the Governor lifts the State of Emergency.Read More
Insurance coverage for business interruption losses caused by the COVID-19 pandemic is the subject of proposed legislation in New York and a number of other states, as well as several lawsuits already commenced by insureds (see our other Client Alert about NY’s proposed legislation here). But whereas those efforts are largely directed at requiring insurers to provide coverage under existing business interruption insurance policy provisions – an uphill battle strongly resisted by the insurance industry – the US Congress is in the early stages of taking a different approach with proposed legislation that would create a new coverage mechanism specifically designed to address losses arising from a pandemic.Read More
Client Alert: Impossibility, Frustration of Purpose, and Impracticability: Doctrines that may excuse contractual performance during the COVID-19 pandemic
In a previous Alert, we discussed how the operation of a force majeure clause in a contract may excuse a party’s performance in whole or in part. But what if a contract does not contain a force majeure clause? Other legal doctrines may still come into play to excuse performance under the circumstances created by the current COVID-19 pandemic.Read More
Due to the COVID-19 pandemic, it is more critical than ever for everyone to have updated estate planning documents in place, especially individuals who are at high risk from the virus or have jobs that require close interaction with the public, such as essential medical professionals, police officers and firefighters. The attorneys in our Trusts and Estates practice group are able to meet with you to discuss and complete your estate planning, while observing social distancing protocols through the use of telephone and video conferencing technology. There are numerous options available to supervise proper execution of documents including remote witnessing and notarization protocols which have been permitted by recent executive orders issued by Governor Cuomo.Read More
The COVID-19 pandemic is causing businesses across the US to consider, many for the first time, the operation and effect of a mostly neglected provision in their contracts: the force majeure clause.
A force majeure clause allows a party to suspend or discontinue performance of its contractual obligations under specified circumstances. It may also limit a party’s liability. Often this clause is overlooked during contract negotiations as routine boilerplate, and covers generic events such as “disasters,” “acts of God,” “labor strikes,” “national emergencies,” or “circumstances beyond the control of the parties.” The question on the minds of many businesses now is whether the COVID-19 pandemic and the various workplace and other restrictions it has spawned qualifies as a force majeure event that will excuse a party’s performance of its contractual obligations in whole or in part. What follows is an introduction to the operation of force majeure clauses and how they may apply during the current COVID-19 public health emergency.Read More
On April 20, 2020, Gov. Cuomo signed Executive Order 202.22, making some important changes to property tax grievance procedures in New York State and Westchester County in particular.
EO 202.22 permits the Cities and Towns of Westchester County to move the date to file property tax grievance back one month, and allows Boards of Assessment Review to conduct their hearings remotely, if necessary.Read More
Many U.S. businesses are experiencing large financial losses due to the coronavirus pandemic. Last month, governments imposed severe restrictions and businesses curtailed their customary operations in response to the crisis. The loss of business income due to these events will result in significant first-party property insurance claims. The availability and scope of coverage available to businesses is likely to be disputed between insureds and insurers and litigated for years to come. Policy details and careful analysis will determine the success or failure of these claims.Read More
While the Department of Health provided temporary relief to Medicaid recipients and applicants during the COVID-19 pandemic, the New York legislature has enacted new restrictions on Medicaid home care applications that are slated to go into effect on October 1, 2020. These restrictions were recommended by the Governor’s Medicaid Redesign Team in an effort to reduce New York State’s rapidly expanding Medicaid budget. Although applicants who seek Medicaid payments for nursing home care have long been subject to imposition of transfer penalties for gifts made in the five-year (60-month) “look back” period prior to the submission of the application, New York has not previously penalized transfers of assets made by applicants for services in the home. However, as of October 1, 2020, gifts made in the 30-months prior to submission of a Medicaid home care application will be penalized unless qualified as an exempt transfer. Additionally, the legislation authorizes changes to the home care assessment and delivery process.Read More
Temporary Easing of Medicaid Documentation Requirements
The COVID-19 pandemic has been a cataclysmic event for our nation’s most vulnerable, particularly the elderly. Nursing homes and assisted living facilities are on lockdown, and home care patients struggle to find and maintain care as the number of available home health aides has dropped precipitously. New Yorkers who rely on the Medicaid program to finance their home care services face all these same challenges, with the added pressures of limited means.Read More
With the COVID-19 pandemic currently ravaging New York State and the nation, there has never been a more critical time to review and update your estate planning documents. Yet, until now, the social distancing rules currently in place have made it very difficult, if not impossible, for clients to execute some of the most important estate planning documents (like wills) because applicable law required witnesses to be physically present when these documents were signed. However, just this past Tuesday, April 7, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.14, which allows for remote witnessing of these crucial estate planning documents via videoconferencing technology. In a previous Executive Order, Governor Cuomo allowed a Notary Public to take an acknowledgment or oath remotely over videoconferencing software as well.Read More
While the Governor has mandated that banks provide homeowners with “forbearance” regarding their home mortgage payments if the homeowner is facing financial hardships due to the COVID-19 pandemic, to date there has not been any corresponding requirement that landlords provide “forbearance” to tenants with respect to their rent obligations. The rights available to tenants may well be determined by two considerations: whether they are residential or commercial tenants; and the language in their leases.Read More
Client Alert: FAQ: Commercial Real Estate Leasing, Lending, and Related Issues During the COVID-19 Health Crisis
My company is unable to use its rented space during the 100% in-person workforce reduction mandated by Gov. Cuomo. Are we still required to pay rent?
Currently there is no law or Executive Order relieving residential or commercial tenants of their obligation to pay rent during the COVID-19 outbreak.Read More
On March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a stimulus package of unprecedented proportions intended to provide economic relief and assistance to American individuals and businesses impacted by the COVID-19 pandemic.Read More
On March 29, 2020, Gov. Cuomo issued Executive Order 202.13 to provide further relief to individuals and small businesses coping with the COVID-9 pandemic health emergency, to clarify certain aspects of prior Executive Orders, and to temporarily modify certain existing laws. We provide highlights here of those portions of EO 202.13 that may be of particular interest to our clients.Read More
The New York State Department of Health (“DOH”) issued guidance that expressly sets forth the protocols for essential personnel to return to work after being exposed or infected with COVID-19.Read More
The COVID-19 pandemic is causing all New York businesses to face unprecedented uncertainties and challenges in a host of areas central to their operations. The landscape of state and federal laws being passed, and regulations and executive orders being issued, is changing almost daily. We are monitoring these changes in federal and state laws, and are continuing to provide guidance and advice to our clients as they navigate these ever-changing and uncharted waters. Although not comprehensive, below we provide some highlights of important changes that may affect your business.Read More
By Adam Rodriguez, Esq.
COVID-19 issues are unfolding unfold rapidly and the government is taking swift and decisive action to deal with the impact. Employers have to be prepared quickly understand and implement these new policy decisions.
The newly enacted Families First Coronavirus Response Act (“FFCRA”) requires small employers (less than 500 employees) to provide employees with paid sick leave and paid family leave for COVID-19 related reasons. Both changes go into effect April 2, 2020 and will remain in place until the end of 2020.Read More