As you may recall, on May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during a future airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of future airborne infectious disease outbreaks, which includes requiring employers to have an exposure prevention plan in place in the event of a future outbreak.

As previously reported on this Blog, regulation 12 NYCRR 840.1 entitled "Airborne Infections Disease Exposure Prevention Standard" was proposed over the summer to assist employers in adopting an exposure prevention plan. 

Although 12 NYCRR 840.1 has not yet been approved, the New York State Dept. of Labor has enacted an emergency regulation so that 12 NYCRR 840.1 can be immediately adopted. 

Regardless of whether or not 12 NYCRR 840.1 is ultimately approved, employers should still have an exposure prevention plan in place. However, to err on the side of caution and to avoid a whirlwind of possible future lawsuits, employers should comply with the requirements set forth 2 NYCRR 840.1, especially in light of the Dept. of Labor's recent actions in proposing an emergency regulation to adopt 12 NYCRR 840.1.

Clearly, the Dept. of Labor is gravely concerned about the possibility of future airborne infectious disease outbreaks and their patience is running thin.

If you agree or disagree with the Dept. of Labor's emergency regulation, you can make your voice heard by emailing Michael Paglialonga, Dept. of Labor, at regulations@labor.ny.gov, by December 31, 2021. 

On November 10, 2021, Federal Regulators issued a statement that lenders will no longer be afforded leniency with complying with mandatory mortgage servicing practices.

As background, Federal Regulators had previously issued an April 2020 Joint Statement, in response to COVID, that they would not take supervisory or enforcement action against mortgage servicers for failing to meet certain borrower-protective timing requirements so long as the servicers made good faith efforts to provide those required notices or disclosures and took the related actions within a reasonable period.

Now, as of November 10, 2021, Agencies will apply their respective supervisory and enforcement authorities, to address noncompliance or violations of Regulation X’s mortgage servicing rules.

Borrowers, who are looking for leverage in negotiating mortgage modifications, short sales, and deed-in-lieu workouts should be brushing up on Regulation X today.

With the foreclosure and eviction moratoriums coming to an end in January 2022, New Yorkers are about to feel pinched in their housing costs, which may turn into utility billing issues.

New Yorkers just received increased rights and beginning on December 8, 2021, utility companies are prohibited from engaging in harassment, oppression, or other abuses towards residential customers in connection with deferred payment agreements and the collection of unpaid balances.

Bill A3359 was signed by Governor Hochul on November 8, 2021 and amends §53-a of the Public Service Law.

As you may recall, a proposed bill (A2382) was submitted to Gov. Hochul last month, seeking to amend the CPLR & Judiciary Law concerning predatory debt collection practices & consumer actions, as discussed in our blog here.

On November 8, 2021, Gov. Hochul signed bill A2382 into law. 

"When bad actors try and take advantage of consumers, New York will fight back. I'm proud to be signing legislation that will protect New Yorkers from unscrupulous practices by debt collectors and utility companies."  -Gov. Hochul. 

This is huge news considering the new legislation will undoubtedly protect debtors from abusive debt collection practices. 

How big of an impact will this new legislation have on overall debt collection practices in New York? 

Stay tuned....

Starting January 2, 2022, borrowers negotiating a loan modification have a right to a single point of contact at their lender.

On November 3, 2021, Governor Hochul signed BillS671 into law, which amends Section 6-o to the banking law, and starting on January 3, 2022, upon written request by the borrower, lenders will be required to provide borrowers with a single point of contact who must provide accurate account and other information related to the foreclosure process and loss mitigation efforts.

This is huge because many mortgage modifications are functionally blocked by a lack of access to lenders rather than based upon qualification criteria. As the foreclosure moratorium is coming to an end on January 15, 2022 and a wave of foreclosures are about to hit New York State, this is a needed law for borrowers, and their attorneys, to settle cases.

On November 8, 2021, Governor Hochul signed Bill A430 into law, which amends Section 52-c to the Civil Rights Law, and starting on May 7, 2022, employers with a place of business in New York who monitor or otherwise tap telephone calls, e-mails, or internet access of an employee by any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must also post the notice of electronic monitoring in a visible place which is readily available for viewing by its employees.

Any employer found to be in violation of this Bill will be subject to a maximum penalty of $500 for the first offense, $1,000 for the second offense, and $3,000 for the third and each subsequent offense.

On November 6, 2021, the 5th Circuit Court of Appeals stayed the OSHA Vaccine Emergency Temporary Standard (which we explained in this blog). However, the Circuit set a short briefing schedule and required the Government to respond to petitioners' motion for a permanent injunction by 5:00 PM on November 8th, which they did, and the petitioners to reply by 5:00 PM on November 9th, which they did. 

However, the stay seems to be a splashy headline about absolutely nothing. Specifically, the Emergency Temporary Standard's compliance date is not until January 4, 2022 and it impossible that the legality of the Emergency Temporary Standard is not determined before then. More so, as the Government points out, in great detail within their response, this case will be in Multidstrict Litigation "on or about November 16—21 days before the December 7 date that petitioners allege is the earliest date that any employee could be required to receive a vaccine and 51 days before petitioners’ employees would be required to start testing." Here, the 5th Circuit choosing to go it alone, is really strange. 

Regardless, the ultimate determination in this case will likely involve a ruling as to whether the United States Code (29 USC 655(c)), permitted OSHA to issue the vaccine Emergency Temporary Standard. The applicable Code section reads:

OSHA shall provide, without regard to the requirements

of chapter 5, title 5, United States Code [5 USCS §§ 500

et seq.], for an emergency temporary standard to take

immediate effect upon publication in the Federal Register

if he determines (A) that employees are exposed to grave

danger from exposure to substances or agents determined

to be toxic or physically harmful or from new hazards, and

(B) that such emergency standard is necessary to protect

employees from such danger.

Stated otherwise, the question before the Multidistrict Court is going to be whether OSHA has power to issue the Standard. To get to that answer, it is helpful to understand that a grave danger means one that causes "incurable, permanent, or fatal consequences to workers, as opposed to easily curable and fleeting effects on their health," according to precedent. 

Now, to make matters even more interesting, even if OSHA loses on this Emergency Temporary Standard before the Multidistrict Court, it can nonetheless issue a vaccine requirement through traditional rulemaking so long as such a requirement is "'reasonably necessary or appropriate' to address a 'significant risk' of harm in the workplace." As you can see, we are just in the starting gate and this horse race hasn't yet even started. Stay tuned. 

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. 

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.

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. 

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."

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. 

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.). 

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. 

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. 

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. 

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? 

Have you ever wondered how the government assesses the value of your property for real estate tax purposes? 

Yes, there are 3 different types of appraisals, including comparable sales, income capitalization, and cost basis. However, each uses sales data of similar properties to develop a value. But, what is the legal definition of similar properties for purposes of a tax assessment? That has long been a hotly litigated. 

Now, starting on January 1, 2022, the answer will be that similar is defined as "properties located in proximate location to the subject property unless there is an inadequate number of appropriate sales or rentals within the same market." Plus, similarity refers to "age, condition, use or the sue at the time of sale, type of construction, location, design, physical features and economic characteristics including but not limited to similarities in occupancy and market rent." 

This new law, A894C, was signed into law by Governor Hochul on October 25, 2021. 

Effective January 26, 2022, A5144 will cause NYS private employees / independent contractors to have expanded whistleblower protection, under amended Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety. 

This expanded protection is not only for employees, but also for former employees and independent contractors. With independent contractor protection, real estate brokers should be on the lookout for their agents lodging complaints to the Department of State, amongst other bodies. It's therefore time for every private business in NYS to button-up its compliance protocol and avoid whistleblowers because silencing them is no longer possible. Beyond tightening up their policy manuals, employers will be required to post signage about this new law at their places of employment.

This law is huge for employee / independent contractor rights and it's going to get messy quickly with lots of lawsuits to follow in the near term. Think about how many times an employer previously leverages its position to blackball a whistleblower from the industry. Now, actionable retaliation includes adversely impacting a whistleblower's future employment. 

This is huge, just watch the news and you will know how many whistleblowers are out there. Think about what's going on with Facebook. What about the Alec Baldwin shooting? Maybe, if New Mexico's law was as broad and protective as this new New York law, the Baldwin shooting / gun mishap wouldn't have happened. Yes, the film crew voiced complaints, but their position was limited. In New Mexico, an employee may not be discharged (or discriminated against) in retaliation for filing a complaint, instituting a proceeding, testifying in a proceeding, or exercising a right concerning violations of occupational health and safety standards. N.M. Stat. Ann. § 50-9-25. However, there is no private right of action (besides common law) and only the possibility of reinstatement and back pay if the secretary of environment chooses to pursue a retaliation claim. In contrast, a New York employee is now protected if they "reasonably believes [the employer's wrong] poses a substantial and specific danger to the public health or safety" and that employee can sue in their own name within 2-years of the retaliation while seeking back pay, front pay, a civil penalty, punitive damages, and attorneys' fees. 

This law will launch a new era of compliance throughout New York industry. Is your business ready? 

Upon the legalization of cannabis in New York State, Section 201-D of the New York Labor Law ("Discrimination against the engagement in certain activities") was amended to prohibit employers from discriminating against employees for using cannabis outside of the workplace on their own time. 

The Department of Labor ("DOL") recently issued guidance (in the form of frequently asked questions) regarding certain elements of the law:

1. Employee Discipline: While employers may not discipline employees for using cannabis while off-duty and off-premises, employers may take action against employees who "manifest specific articulable symptoms of impairment" on the job. The DOL guidance defines "articulable symptoms of impairment" as "objectively observable indications that the employee's performance of the duties of the position are decreased or lessened." For example: operating heavy machinery in a reckless manner would likely qualify. The DOL further specified that the following are not, without more, "articulable symptoms of impairment": 
• positive test for cannabis;
• odor of cannabis; and/or
• other typical observable signs of cannabis use.
2. Use at Work: Employers may prohibit cannabis use and possession during all work hours which include breaks and meals periods, even if the employee leaves the worksite, and when an employee is "on-call."
3. Drug Testing: Employers may not test employees for cannabis outside of the following circumstances:
• It is required by state or federal law for a particular position;
• The employer would lose a federal contract or federal funding; or
• The employee manifests "specific articulable symptoms of impairment" (although an employer may not discipline an employee based solely on a positive test, as stated above).