LIEB BLOG

How current events impact business & real estate

Thursday, November 04, 2021

OSHA Releases Details/Requirements of Employer Vaccine Mandate

The Occupational Safety and Health Administration ("OSHA") issued its long awaited emergency temporary standard requiring all private sector employers with 100 or more employees ("covered employers") to "develop, implement, and enforce a mandatory COVID-19 vaccination policy." OSHA issued separate rules for federal contractors/subcontractors and health care workers.


The OSHA rules require all covered employers to ensure their employees are vaccinated by January 4, 2022 or undergo weekly testing for COVID-19 and wear face coverings while at work (There is no testing option for health care workers).


Employers do not have to require employees to get vaccinated or be tested weekly if they: 1) report to a workplace where no other individuals are present; 2) work entirely from home; or 3) work exclusively outdoors. In addition, the rules provide for a reasonable accommodation for employees who have a disability or sincerely held religious belief (where there is no undue hardship to the employer).


The rules also require covered employers to do the following:


  • obtain and preserve records of employee vaccination/testing which must be provided to employees, employee representatives and OSHA upon request;
  • provide employees with up to four (4) hours of paid time off to receive their vaccine dose(s);
  • provide reasonable time off and paid sick leave for employees to recover from side effects experienced from receiving the vaccine;
  • require employees to notify the employer when they are diagnosed with COVID-19 and remove all employees who are positive from the workplace until they meet certain criteria;
  • require all unvaccinated employees as of December 5, 2021 to wear masks (they must be vaccinated by January 4, 2022). 
  • report all COVID-19 fatalities and hospitalizations to OSHA;

Aside from the vaccination/weekly testing requirements, all of the other rules take effect on December 5, 2021. Covered employers should, thus, immediately work with counsel to begin creating and implementing a policy in compliance with these new rules. Covered employers who fail to comply with these rules can face fines in the amount of $13,653 per violation or $136,532 per violation if the conduct is willful or repeated. 



Builders Required to Provide Cost Estimate of Fire Sprinkler System Beginning September 1, 2022


Starting September 1, 2022, prospective buyers of newly built one or two-family homes will now become aware of the possibility of a fire damaging their home, and have the opportunity to reduce this risk prior to even beginning construction.

 

On November 4, 2021, Governor Hochul signed Bill S1383 into law, which amends Section 759-a of the General Business Law. Beginning September 1, 2022, builders of one- or two-family homes with less than three stories will be required to provide a buyer with a cost estimate for the installation and maintenance of an automatic fire sprinkler system. The builder must also provide a copy of written materials prepared by the office of fire prevention and control which details the benefits of and includes factors that can affect the costs associated with the installation and maintenance of an automatic fire sprinkler. If the buyer requests the installation of the automatic fire sprinkler system, the builder shall install it at the buyer’s expense.

 

Fire Sprinkler systems are an effective device in the event of a fire and are not uncommon. Many structures such as commercial buildings and multi-family homes are required to install such devices in the State of New York. The justifications for this bill seem very convincing, and this bill will allow prospective homeowners who are planning new construction with a cost estimate for installation of a fire sprinkler system which could ultimately, save their house or even more importantly, their lives.

Monday, November 01, 2021

New Dog / Insurance Law - Dog Breed Exclusions Can't be Random

As of January 28, 2022, NYS insurers are prohibited from refusing to issue or renew, cancel, or charge or impose an increased premium for homeowners' insurance policies based on the breed of a dog owned.


Nonetheless, Insurance Law 3421 now provides an exception where insurance can be modified if a breed or mixture of breeds is designated as a dangerous dog pursuant to Agriculture and Markets Law 123, which requires such designations to be made by sound underwriting and actuarial principles, rather than fear alone. 


Governor Hochul signed this legislation, S4254, on October 30, 2021. 




Friday, October 29, 2021

New Law: Felon Executors Permitted in Probate

Wow, as of October 22, NYS is now permitting felons to serve as Executors of Estates by way of A2573A


Previously, a Petition for Probate required an Affirmation as to whether the applicant has been convicted of a felony and if they had, they'd be denied Letters Testamentary (appointment as the estate fiduciary). 


According to the Bill's Justification, the purpose of this new law is to respect the decision of the decedent. Specifically, the Justification states:

In most instances the court respects the choices made by the creator of the document and appoints the nominated parties. It is detrimental to grieving families when an individual is prohibited from acting as an executor due to his or her conviction after paying their debt to society.


That being said, this new law is not without any restrictions whatsoever. Specifically, the law enables the Court to nonetheless declare a felon ineligible if their "crime may be adverse to the welfare of the estate, including but not limited to, crimes such as embezzlement or any crime where there was a misappropriation of money or a breach of fiduciary duty."




Texas Abortion Law is Before the US Supreme Court on Monday - Are Your Ready?

Before the US Supreme Court on Monday, November 1, 2021, is Texas's abortion law, which seems to be about stopping abortions by changing the standard from viability, as is the current law under Roe v. Wade, to 6 weeks into pregnancy, but it's about so much more and you should really care. 


The law deputizes Texans to police their neighbors in a way that should ring out fears that we are transitioning into a dystopian society like a real-world Handmaid's Tale. 


Imagine for a second, if you can, that this law has nothing to do with abortions (regardless, if you are pro-life or pro-choice) and ask yourself, how do you feel about your neighbors receiving $10,000 for catching you speeding on the highway, or shoplifting, or putting an extension on your house without a permit. In Texas, if you catch someone violating the 6-week abortion rule, you can get paid $10,000. Crazy. 


Ironically, Texas's law has survived scrutiny under Roe v. Wade because of this unique enforcement scheme. In fact, the US Supreme Court previously denied an application for injunctive relief, on September 1, 2021, by explaining that there was no "private-citizen respondent before us [who had] intention to enforce the law" [they sued the government rather than a citizen enforcing the law to get $10,000] and therefore, the Court ruled that there was a procedural hurdle preventing it from making "any conclusion about the constitutionality of Texas's law" when it comes to abortions. 


Now, on November 1, 2021, the Court will hear arguments as to whether the "United States [may] bring suit in federal court and obtain injunctive or declaratory relief against the State, state court judges, state court clerks, other state officials, or all private parties to prohibit SB. 8 from being enforced." If they can stop a judge from granting the $10,000, they stop the law. 




Predatory Debt Collection Practices No Longer Tolerated in New York

A proposed bill (A2382), awaiting Gov. Hochul's signature, seeks to amend the civil practice rules in NY (CPLR) & Judiciary Law concerning predatory debt collection practices & consumer credit actions. 


Specifically, the Bill provides the following: 

  • Cut the statute of limitations on consumer credit transactions in half (i.e., from 6 years to 3 years);
  • Require all consumer credit action pleadings to include additional information (i.e., name of original creditor, last 4 digits of account number on most statement, date & amount of last payment, etc.);
  • Allow defendants to raise improper service as a defense (i.e., unwaivable); 
  • Require an additional notice of a pending consumer credit action be mailed to a defendant by clerk of the court; &
  • Require additional steps for entry of default judgment against a debtor (i.e., affidavit by original creditor of facts related to debt/default in payment, affidavit of sale for every subsequent assignment of sale of debt to a third-party, affidavit of a witness of the plaintiff, including chain of title of debt, etc.). 

As you may know, thousands upon thousands of debt collection lawsuits are filed against low to moderate income families in New York. Plus, debt collectors often utilize unlawful debt collection practices, including continuous & persistent phone calls in the early morning or late evening hours. Additionally, debt collectors have been able to take advantage of the 6-year statute of limitations by tacking on additional fees & interest on underlying debt. 


The Bill, when signed, will undoubtedly reduce the number of debt collection lawsuits in New York, force debt collectors to act swiftly should they choose to collect on an unpaid debt, significantly reduce fees & interest on underlying debts, & make entry of a default judgment against a debtor much more difficult to obtain. 


The COVID-19 pandemic is still ongoing & those in credit card debt are likely the same ones who have been laid off & have difficulty paying their bills & putting food on their tables. This Bill will certainly help those individuals who have & continue to face predatory debt collection practices from debtors & would provide some sort of relief during this difficult time. 


Stay tuned to see if Gov. Hochul signs this bill into legislation... 






Thursday, October 28, 2021

EEOC Provides Clarifications on Religious Exemptions to COVID-19 Vaccine Mandates

The Equal Employment Opportunity Commission ("EEOC") recently released new guidance on religious exemptions to COVID-19 vaccine mandates. The new guidance provides clarifications regarding employers' and employees' obligations, including the following:

  • In requesting a religious accommodation, an employee must specify that there is a conflict between the vaccine requirement and their sincerely held religious beliefs.
  • If an employer has an objective basis to question either the "religious nature or the sincerity of a particular belief," the employer can seek additional supporting information from the employee regarding their religious beliefs.
  • Objections to COVID-19 vaccinations based on social, political or personal preferences do not qualify as sincerely held religious beliefs.
  • In assessing whether it can deny an accommodation request based on an undue hardship, an employer should consider factors such as whether the employee: works outdoors or indoors, works in a group setting, has close contact with other individuals, as well as the number of employees seeking a similar accommodation. 
  • The employer can choose its preferred accommodation that would resolve the employee's conflict even if it is not the accommodation requested by the employee. 
Since every request requires an individual assessment of the employee's religious beliefs and potential burden to the employer, employers should seek the advice of legal counsel prior to making a determination.



Tuesday, October 26, 2021

New Law Permits Employees to Petition Employers to Implement a "Shared Work" Program without Fear of Retaliation.

Governor Hochul signed Bill A07373 into law yesterday which permits employees to petition their employer (in writing, within ten (10) days after a layoff, or in advance of a layoff) to implement a "Shared Work" program in lieu of a layoff. While employers are not required to implement a Shared Work program, employers must respond to the employees' petition in writing within seven (7) days and may not discriminate or retaliate against any employees who bring a petition.

The Shared Work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours. 

New Zoning Law: Expansion of Court's Power to Order Removal of Building in Violation of Building Code

Be warned, the process just got a lot easier for a city / district court Judge to "order the removal of the building or an abatement of the condition" that is in violation of "any provision of the uniform code." 


Previously, there was a functional impediment when cities, towns, and villages sought to obtain such an order from the Court. While zoning violations were typically brought in city or district court, only a Supreme Court Justice had the authority to order the removal of the building or an abatement of the condition in violation. This obstructed enforcement of violations. 


Now, with A3028, having been signed into law on October 25, 2021, this is changed, and local courts, such as city and district courts, are empowered to render such an Order. 




New Construction Litigation Law: Home Improvement Contractors Required to Disclose Insurance

Construction can be a nightmare, which can get even worse when your contractor doesn't have insurance to compensate you for their mistakes and damage. 


Based on A2202, which was signed into law by Governor Hochul on October 25, 2021, starting on April 23, 2022, contractors and subcontractors "shall disclose to the homeowner the existence of a property and/or casualty insurance policy that covers the scope of such contractor or subcontractor's employment should an insurance claim be filed resulting from losses arising from the work at such property. Such disclosure shall also include the contact information of the insurance company providing such property and/or casualty insurance, including a phone number and address."


While this is a move in the right direction, the damages for failure to comply are not enough to move the needle. It's expected that contractors will just ignore this law, as the cost of doing business, because the only damages available to a homeowner who doesn't receive information about the contractor's insurance is "a civil penalty not to exceed the greater of two hundred fifty dollars for each violation or five percent of the aggregate contract price specified in the home improvement contract; provided, however, that in no event shall the total penalty exceed twenty-five hundred dollars for each contract." 


Maybe, it's time to up the penalty too so that the government can make a meaningful impact in protecting homeowners who work with unscrupulous contractors?