According to the Second Circuit:

This Court entered a temporary injunction in the above-captioned case on Friday, September 24, 2021 for administrative purposes pending decision by a three-judge panel. IT IS HEREBY ORDERED that the September 24 injunction is DISSOLVED. IT IS FURTHER ORDERED that the motion for an injunction pending appeal is DENIED.

That said, not getting vaccinated does not equal automatic termination. 

As the City explained in their opposition to the injunction, "even employees who object to vaccination... can elect to stay home and retain their positions while being placed on unpaid leave with healthcare until early September 2022... And even if plaintiffs decline the extended leave option, the earliest any steps would be taken to terminate their employment would occur in December 2021." 

So, "employees who fail to submit proof of having received one dose of vaccination by September 27, 2021, are to be placed on unpaid leave with health insurance the following day. [internal citation] But an employee who submits proof of vaccination before November 30, 2021, will be able to return to work within a week. [internal citation] And an employee who submits proof of vaccination thereafter, but before September 5, 2022, will be able to return to work within two weeks." 

As to accommodations, the City is granting accommodations "for a religious or medical" needs. However, an underlying arbitration on the matter set "an alternative to any statutory reasonable accommodation process... for the 2021-2022 school year" where the deadline for "any requests to be considered as part of this process... [was] no later than Monday, September 20, 2021, by 5:00 p.m." Therefore, any school employee who has not yet applied for an accommodation, CANNOT get one. 

The City's opposition summed this entire situation up nicely where it stated, "Put bluntly, plaintiffs do not have a substantive due process right to teach children without being vaccinated against a dangerous infectious disease."

On September 25, 2021, Gov. Hochul released a comprehensive plan to address possible shortages within hospital and health care facilities in preparation for today's vaccination deadline. 

The plan includes the following: 

• Signing an executive order (if necessary) to declare a state of emergency that would increase workforce supply in the hospital and health care facilities and allow qualified health care professionals in other states or countries, recent graduates, and retired health care professionals to practice in New York;
• Exploration of ways to expedite visa requests for medical professionals; 
• Possible deployment of medically-trained National Guard members; &
• Partnering with the Federal Govt. to deploy Disaster Medical Assistance Teams ("DMATs") to assist local health and medical systems. 

The Tax Cuts and Jobs Act ("TCJA") caused the gift, estate, and gift-skipping transfer ("GST") tax exemptions to be $11.7 million per person in 2021. However, it is scheduled to decrease to $5 million, adjusted for inflation on January 1, 2026. Have you been planning for that cliff? 

Even scarier for estate tax planning is the Build Back Better Act, which is a projected $3.5 trillion COVID-19 plan proposed by President Biden to create jobs, cut taxes, and lower costs for working families, which includes lowering taxes, prescription drug, childcare, health care, and education costs. This law proposes to accelerate the estate tax exemption decrease by four (4) years, to January 1, 2022. 

Yet, the Build Back Better Act is not yet enacted into law. It is currently being marked up by the House Ways and Means Committee. 

Have you spoken to your congressperson about your feelings about speeding up the estate tax exemption cliff? 

Do you think it should be included in the Build Back Better Act? 

Stay tuned for updates concerning the Build Back Better Act in the upcoming weeks to follow... 

If you want to avoid a workplace vaccine mandate, be very careful what you post on social media about politics and vaccines.

According to the U.S. Equal Employment Opportunity Commission's Questions and Answers: Religious Discrimination in the Workplace, "[s]ocial, political, or economic philosophies, as well as mere personal preferences, are not “religious” beliefs protected by Title VII." This is cited in the EEOC Compliance Manual § 12–I(A)(1).

Instead, per the EEOC, a religious belief concerns “ultimate ideas” about “life, purpose, and death."

To qualify for a vaccine exemption, you need a religious or medical reason, not a political one. 

In fact, employers are already combing the internet to confirm whether your claimed religious belief is insincere and merely a manifestation of your politics. Taking this a step further, if you sue your employer for failing-to-accommodate your religious beliefs, be warned that your social media posts are fair game and are a gold mine for a good trial lawyer who will tear you apart on the stand. 

As background, the underpinnings of the EEOC's position stems from the United States Supreme Court, which first set the test for a sincerely held religious belief in U.S. v. Seeger, when conscientious-objectors sought accommodations from service in the armed forces (a/k/a, draft exemptions). Per the Supreme Court, the test is "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption." This test was adopted to the employment discrimination context by the Third Circuit Court of Appeals in Protos v. Volkswagen of America, Inc. 

Back to you. An employer can and should challenge whether you sincerely hold your espoused religious belief before granting you an accommodation from its rules and policies, like a vaccine mandate. 

As an illustration of what you are looking at in such a challenge, see the case of Sidelinger v. Harbor Creek School Distr., where an employee sought a religious exemption from his employer's "requirement of wearing an identification badge" because of his claims that wearing a badge evoked the "sins of pride and hypocrisy contrary to his religious belief... [as] an old-fashioned, very conservative Roman Catholic." In the case, the District Court made clear that while it would not question the truth of the belief, it would certainly question whether the employee truly held that belief. Further, the Court emphasized that it is an employee's burden "to show that he holds a sincere religious belief in conflict with his employer's requirements." Finally, the Court explained that an employee's sincerity and credibility are the basis for a factbinder's assessment, which includes internet posts. By the way, the Court found that the employee did NOT qualify for a religious accommodation. 

Are your claimed religious objections to the COVID vaccine sincere or BS political crap? 

Sharing Attorney Andrew Lieb's interview on Newsy - He addressed hearsay about vaccine mandates in the workplace such as: Do you get unemployment if you get fired for refusing vaccination?

Click HERE to watch the Interview

 The Lieb Cast answers the following questions about Biden's employment vaccine mandate in the latest podcast: 

1. Can Biden / OSHA issue an Executive Order / Regulation mandating employment vaccines? 
2. Can the Federal Congress issue a statute mandating employment vaccines or is that a state's rights issue?
3. What is the precedent for an individual state to issue a vaccine mandate and would it be upheld?
4. Does it matter if an individual state's Governor or Legislature issued an employment vaccine mandate for enforceability?
5. How does a sincerely held religious belief against vaccines avoid employment vaccine mandates?
6. How can employers refuse an accommodation who has a disability or sincerely held belief and requests to avoid an employment vaccine mandate?

Plus, we discuss brisket, ice cream, 9/11, Rosh Hashanah, Yom Kippur, horse dewormers, and most importantly, we break down the hiring / staffing issues faced by employers everywhere.

Link to Podcast: https://www.listentolieb.com/876124/9172946-legal-breakdown-and-analysis-of-biden-s-employment-vaccine-mandate

Landlords and brokers should pay close attention to Long Island Housing Servs. Inc. v. NPS Holiday Square LLC in the Eastern District of New York. 

This case addressed whether minimum income requirements for rentals are discriminatory. 

What do you think?

Should a landlord be able to screen tenants based on their income?

The landlords in this case utilize "a two-to-one income requirement, which generally requires applicants without housing vouchers to have an income double the monthly rent." If they have vouchers, the vouchers are credited "as one month's rent and [the] applicants [] have [to have] an income equal to between 80 percent and 100 percent of one month's rent." 

To be discriminatory, this policy would have to have "'a significantly adverse or disproportionate impact' on housing voucher users." 

Currently the plaintiffs and defendants are battling over experts, but this case is going to teach landlords, brokers, property managers, and the like how to frame their policies moving forward. 

So, keep a close eye on this one. 

The New York State Supreme Court (lowest level court with jurisdiction) issued a temporary restraining order until the sooner of a hearing or 9/22/21 concerning New York City's vaccine mandate for public education employees who instead argue for a Vax-Or-Test policy. 

To see the arguments yourself, in The New York City Municipal Labor Committee et al vs. The City of New York et al, click here. 

Specifically, the Order, at issue, "requires [vaccines for] all DOE staff, City employees, and contractors who 'work in person in a DOE school setting or DOE building'; and '[a]ll employees of any school serving students up to grade 12 and any UPK-3 or UPK-4 program that is located in a DOE building who work in-person, and all contractors hired by such schools or programs to work in-person' to – no later than September 27, 2021"

The teachers union makes three arguments against the Order, as follows:

• "[B]odily integrity and the right to refuse medical treatment;"
• A violation of "due process rights" because it prevents "permanently-appointed DOE and City employees declining vaccination from engaging in their employment;" and 
• It "fails to provide required exceptions for those with medical contraindications or sincerely-held religious objections". 

The best argument is clearly the third because "DOE has advised that it will not allow those with medical or religious exceptions – should those be accepted – to continue working in person under a strict testing regimen, or remotely with those students receiving remote instructions. Nor is it clear at this stage how those who refuse vaccination will be treated as to leaves, benefits, and other statutory rights." 

While DOE may be able to refuse a given accommodation request that results in an employee working in a building, accommodations must be decided on a case-by-case basis, under binding law, and therefore, such a blanket policy is legally problematic. 

As we've been suggesting from the outset, NYC Government should negotiate with the Union as to appropriate accommodations. Think about it like a class action of the cooperative dialogue (required mediation following an accommodation request under NYC employment discrimination law).

Otherwise, NYC Government will continuously find itself engaging in individualized cooperative dialogues with each employee that requests an accommodation. That is a financially infeasible result for NYC plus it will cause many teachers to bring suit following each cooperative dialogue. All of this can and should be amicably resolved through advance negotiations by giving the Unions a seat at the table.

In an effort to further provide adequate COVID-19 safety protocols for federal contractors and subcontractors, on September 9, 2021, President Biden signed Executive Order 14042, requiring federal agencies to ensure that contractor and subcontractor contracts contain a clause requiring contractors and subcontractors to comply with all guidance for workplace locations published by the Safer Federal Workforce Task Force ("SFWTF").

President Biden established the SFWTF in order to provide guidance to the heads of Federal Govt. agencies on employee safety during the ongoing COVID-19 pandemic. By September 24, 2021, the SFWTF will provide explanations of protocols required of contractors and subcontractors to ensure workplace safety compliance at workplace locations. Stay tuned for further information as it becomes available. 

It appears that Executive Order 14042 goes hand-in-hand with Executive Order 14043, also signed by President Biden on September 9, 2021, which requires COVID-19 vaccinations for all federal employees, subject to certain exceptions. Additionally, by September 16, 2021, the SFWTF is required to provide guidance to federal agencies who must implement a program requiring COVID-19 vaccination for its employees. Stay tuned for our analysis of that guidance as well. 

Clearly, President Biden has taken drastic steps in an attempt to slow down the spread of the ongoing COVID-19 virus. 

It will be interesting to see what guidance protocols the SFWTF comes up with over the course of this month - do you think it will be challenged in court? 

Stay tuned...

We have been inundated with calls this morning, since Andrew Lieb's appearances on Fox 5, LI News Radio, and WFAN this past week so we thought it was important to put some general information out there for those seeking a vaccine exemption based upon sincerely held religious beliefs. 

To be clear, a sincerely held religious belief DOES NOT automatically get you an exemption from a vaccination requirement.

Instead, your religious belief will, at best, get you an adjustment (known as an accommodation) to a vaccine requirement if such adjustment does not create an undue hardship for your employer. 

Let's break that down a little further.

First, the Equal Employment Opportunity Commission (EEOC) tells us what a sincerely held religious belief is means here. In summary, a sincerely held religious belief "concerns 'ultimate ideas' about 'life, purpose, and death.' Social, political, or economic philosophies, as well as mere personal preferences, are not 'religious'," 

As a result, if you want to claim a religious exemption, DO NOT make vaccine mandates POLITICAL. Instead, make your objection to vaccines SOLELY about your vision for life, purpose, and death. 

Moreover, don't be defeated if you are not a practicing member of an organized religion or if your religious leaders disagree with your ultimate ideas. Specifically, EEOC tells us that "new, uncommon, [beliefs, which are] not part of a formal church or sect, [and] only subscribed to by a small number of people, or that seem illogical or unreasonable to others" also qualify.  

That being said, there is another prong to the law that is being lost in the conversation today. 

An exemption to a vaccination requirement need only be given if it does not present an undue hardship to your employer.

Under federal law, employers are in the driver's seat because an undue hardship is anything that creates more than a de minimis cost. So, unless a worker works from home and wants to continue to work from home it will be a challenge to find a vaccine accommodation request that qualifies. Barriers, masks, tests, changed hours, modified locations, and the like will likely pose more than a de minimis cost and therefore, an accommodation request can be denied. But, that is ONLY under federal law. 

States, like New York, afford workers with more rights. In New York, a worker should receive an accommodation unless it imposes a significant expense or difficulty on an employer. That being said, accommodations that compromise the safety of others, such as co-works, customers, and the public, at large, always create undue hardships on employers. Therefore, workers should be highly conscious of public health when making their requests.

Putting this all together, a worker should carefully draft their accommodation request form and emphasize that they truly have a sincerely held religious belief by focusing away from politics and instead, on such issues as life, purpose, and death. Then, a worker's request should suggest alternatives to the vaccine such as limiting contact with others, regular COVID testing, and masking. Then, if the worker gets denied, they will have a good case for employment discrimination, which can and should be filed in court.

If that is the route that you are thinking, please hire a lawyer from the get go. Get any employment lawyer, at the start of it, because you are going to need to ensure that your initial accommodation request form (and other communications) do not kill your case before it's filed. You are also well advised to keep your politics out of it, out of social media, and away from your daily conversations. If you are truly seeking a religious exemption, politics aren't what is relevant, your right to worship freely is what matters.

The Federal Court for the Northern District of New York has enjoined vaccine mandates based upon sincerely held religious beliefs by way of issuing a Temporary Restraining Order in the case of Dr. A v. Hochul.  

Here is how the plaintiffs' argued that the vaccine violate their sincerely held religious beliefs - "vaccines [] were tested, developed or produced with fetal cells line derived from procured abortions." According to the plaintiffs:

 Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).

 Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.

 Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Further, plaintiffs religious beliefs are that they "oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent" and follow "spiritual leaders... who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise" and finally, their "religious conviction [is] against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs."

To be clear, the case is far from over with the next court deadline for the defendants to respond being set at September 22, 2021 at 5pm. As of this moment, no preliminary injunction or permanent injunction has been ordered. At this stage, the court has merely granted a temporary restraining order, which prohibits the denial of "religious exemptions from COVID-19 vaccination" until round two of the case.

However, if you are the type of person who has a sincerely held religious belief against vaccination, you should use this case as your blueprint to request an accommodation.

NYC Council has enacted local law 1339-2019, which amends Title 21 of the NYC Administrative Code by adding section 21-142, requiring the DSS to provide CityFHEPS (a rental assistance program designed to help individuals and families find and keep housing) applicants with written notice about source of income discrimination at the time an applicant receives a shopping letter from the DSS. 

The notice would provide information about protections under the NYC Human Rights Law related to source of income discrimination.  

The notice will provide the following: 

• Examples of phrases that may indicate discrimination based on lawful source of income.
• A statement that it is illegal for landlords, brokers, and other housing agents to request additional payments for rent, security deposit, or broker's fee because an individual receives rental assistance.
• A statement that it is illegal for landlords, brokers, and other housing agents to publish any type of advertisement that indicates a refusal to accept rental assistance.
• A statement that an individual has a right to be free from discriminatory, harassing, or threatening behavior or comments based on individuals' receipt of rental assistance. 
• Contact information for the department's source of income discrimination unit.

Clearly, this local law significantly stops landlords from discriminating against prospective or existing tenants that qualify for source of income under the CityFHEPS program. On the flip side of the coin, the law undoubtedly benefits those receiving source of income from the CityFHEPS program and prospective tenant applicants of the CityFHEPS program, by greatly reducing the likelihood of landlord discrimination based on source of income, while also providing a method to report any future source of income discrimination. 

What's missing is that CityFHEPS recipients should know that they can file suit and get their attorneys' fees paid if they are victims of discrimination. While the BYC Council has made it clear that source of income discrimination will not be tolerable on any level, are landlords prepared to avoid claims of discrimination?  

Landlords - what are you doing to enact policies so your teams don't discriminate? 

Struggling employers can reduce their employee's hours and those employees can offset their lost wages with unemployment insurance (UI) under the Shared Work Program, which now offers even more flexibility thanks to S.4049, which Governor Hochul signed on Labor Day (9/6/21).

The Shared Work Program provides employers with an alternative to laying off workers during business struggles by allowing employees to receive partial UI benefits while working reduced hours. 

Previously, under the Shared Work Program, employees could only collect partial UI benefits for up to 26 straight weeks, regardless of what their maximum benefit entitlement is under UI. 

Now, the new legislation changes the cap on shared work benefits from 26 straight weeks to an amount of time equal to 26 weeks' worth of benefits. In other words, employees can now collect UI benefits until they have reached their maximum benefit amount under UI. 

This change will ultimately extend the length of time a worker will receive benefits under the Shared Work Program.

According to Gov. Hochul, "these bills [workforce legislation package] will ensure that workers receive fair wages, benefits, and are kept safe in their work places." 

How big of an impact do you think this new legislation will have on workers and employers going forward? 

• Extend residential and commercial eviction and foreclosure moratoria to January 15, 2022;
• Expand eviction protections for tenants under the COVID-19 Emergency Rental Assistance Program (CERAP);
• Create a due process mechanism for a landlord to challenge a tenant’s Hardship Declaration;
• Direct judges to require residential tenants to apply for CERAP if their hardship claim is determined to be valid;
• Extend the period covered by the Tenant Safe Harbor Act to January 15, 2022; and
• Increase funding for CERAP, Hardship Fund, and legal services for tenants facing evictions.

Eligible tenants are:

1. Tenants or occupants obligated to pay rent in their primary NYS residence;
2. Individuals who have qualified for unemployment or experienced a reduction in household income, incurred significant costs, or experienced other financial hardship due – directly or indirectly – to the COVID-19 outbreak;
3. Tenants who demonstrate a risk of experiencing homelessness or housing instability; AND
4. Tenants who have a household income at or below 80% of the area median income, adjusted for household size.

If a tenant is approved for rental assistance under CERAP, the money goes directly to the landlord. However, landlords who accept CERAP payments, must:

• Not use any prior arrears as a basis for a nonpayment eviction proceeding;
• Waive late fees;
• Not increase monthly rent due 1 year from the date the first CERAP payment is received; and
• Not evict based on an expired lease for a period of 12 months after the first CERAP payment is received, UNLESS the property is in a building with 4 or fewer units, and in which case, the landlord may decline to extend the lease only if the landlord or his immediate family intends to immediately occupy the unit for personal use as a primary residence.

Nonetheless, landlords who accept CERAP may still commence evictions against tenants who:

• Intentionally cause significant damage to the property;
• Persistently and unreasonably engage in behavior that substantially infringes on the use and enjoyment of other tenants or occupants; or
• Causes a substantial safety hazard to others.

What should landlords do now?
Start an eviction proceeding and challenge the hardship, which will either result in CERAP money or permission to continue the eviction process. Alternatively, if a landlord does not have a good faith basis to challenge the hardship or does not want to be restricted by the program’s requirements, then, a landlord should bring a breach of contract lawsuit in NYS Supreme Court against their non-paying tenants, as explained by the federal courts in Elmsford Apartment Associates LLC v. Cuomo.

Episode 208 of The Lieb Cast.

Stop complaining about governmental vaccine rules for where you work and where you go. Just live in the right place for you. We explain NYC's vaccine rules to participate in everything and Montana's new anti-discrimination law that prohibits changing opportunities based on vaccination status. 

Search "The Lieb Cast" on any podcast player. 

As previously reported on this Blog,  the New York Health and Essential Rights Act ("NY HERO Act") requires employers to take various measures to protect employees in the event of a future airborne infectious disease outbreak.  An "emergency regulation"  and "proposed final regulation" was recently released to clarify and implement certain requirements contained in the NY HERO ACT so employers are prepared in the event the NY Health Commissioner designates an airborne infectious disease as highly contagious. 

Specifically, the regulation designated as 12 NYCRR 840.1, entitled "Airborne Infections Disease Exposure Prevention Standard" requires employers to:

• Establish a written exposure prevention plan designed to eliminate or minimize employee exposure in the event of an outbreak of an airborne infectious disease;
• Update exposure prevention plans whenever necessary to reflect new or modified tasks which affect occupational exposure and to reflect new or modified employee assignments;
• Make exposure prevention plans available, upon requests, to all employees;
• Select and obtain appropriate exposure controls appropriate for exposure risks (i.e. health screenings, masks, distancing, hygiene, etc.); and 
• Prohibit employers from retaliating against employees for exercising their rights under an employer's exposure prevention plan. 

On August 27, 2021, the US Supreme Court opened the floodgates for evictions throughout the United States in the case of Alabama Association of Realtors v. DHHS. 

Landlords, have you called your attorney yet to start the eviction process? 

Investors, are you ready for the housing market to swing because of a flood of inventory? 

Tenants, have you started to make moving arrangements and tried to settle your arrears for less money? 

Wow, can you feel that tsunami coming? 

Make no mistake, this is the first domino to fall in our housing market's shift into a buyer's market on fundamentals. Are you ready? 

For the legal context of what transpired, the CDC had issued a moratorium on evictions in counties with substantial or high levels of COVID-19, which we explained here. That moratorium was thrown-out by the District Court for the District of Columbia, but that Court knew that the issue would get to the Supreme Court so they stayed (a/k/a, paused) the effectiveness of their Order overturning the moratorium until the Supreme Court could weigh-in, which we explained here. Now, the Supreme Court has weighed-in and the eviction moratorium is ineffective, unlawful, and unenforceable. 

To be clear, the Supreme Court did not weigh-in on the policy of an eviction moratorium. They didn't rule as to whether it is a good idea, good policy, or needed for our country. Instead, the Supreme Court ruled "that the statute on which the CDC relies does not grant it the authority it claims." In plain language, the eviction moratorium was thrown-out because the CDC's basis for imposing the moratorium does not afford it that power.

You see, Executive Branch agencies, like the CDC, can't do whatever they want. They need power before they act, which comes from Congress. Without that power, they can't do anything. They can't issue regulations, rules, or directives. This power, called an enabling statute, was missing from the eviction moratorium, according to the Supreme Court, which explained that the power relied upon by the CDC was meant "to implement measures like fumigation and pest extermination," not eviction moratoriums. According to the Supreme Court, "our system does not permit agencies to act unlawfully even in pursuit of desirable ends." 

Knowing that, you should be wondering if Congress will act and impose its own eviction moratorium? 

For landlords, investors, and tenants that is a really important question given that the Supreme Court acknowledged, in its decision, that "[a]t least 80% of the country, including between 6 and 17 million tenants at risk of eviction, [fell] within the moratorium." 

However, we doubt that Congress will issue another moratorium because it can't get anything done with its division in the Senate. Further, the Supreme Court reminded Congress, in its decision, that a federal "moratorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship." 

As a result, evictions are about to flood the court systems. Are you ready for the eviction tsunami? 

On episode 205 of The Lieb Cast, We bring on the Attorney who is representing the group of disabled children in Texas suing Governor Abbott over school mask mandate ban.  We predict the unraveling of several lawsuits to follow. Search "The Lieb Cast" on any podcast player. 

Take a read of Maura McDermott's latest article in Newsday, "NY's COVID-19 foreclosure ban is set to expire, but homeowners can still get help," where she quotes our very own Leslie Mendoza, Esq.

Leslie explains that while the "[t]he state’s temporary foreclosure ban 'merely delays any kind of discussion between the borrower and the lender in terms of resolving the delinquencies,' the CFPB rule should help many homeowners get a modified loan, as long as they qualify for one."

To learn more about whether you qualify, read the article and always speak to a great lawyer.

The MTA needs to explain what reasonable accommodations it made for passengers with disabilities to access the subways during its frequent and inconvenient elevator outages according to the Second Circuit Court of Appeals in Brooklyn Ctr. for Indep. of the Disabled v. Metro. Transp. Auth.

This raises an important question for all landlords - what do you do to provide access for disabled people when your elevators don't work? 

According to the Court, "[a]n “accommodation must overcome . . . non-trivial temporal delays that limit access to programs, services, and activities.” 

While the the MTA offered accommodations such as busing alternatives, notice of outages, and permanent signage explaining alternative routes, the Second Circuit said that wasn't enough to summarily dismiss the case.

Have you audited your accommodation offerings recently? If not, you should. 

In one of his last acts as Governor for the State of New York, Gov. Cuomo signed legislation on August 19, 2021, which requires banks in NY to take action to prevent overdraft fees against its customers. 

Previously, under the NYS Banking Law, if a customer's check exceeds the funds available in the customer's checking account, that check and any subsequent checks received by the bank would be dishonored by the bank. In other words, even if there were sufficient funds to satisfy these subsequent checks, the banks would still dishonor those checks because the initial check was rejected, and therefore, the banks would be able to charge overdraft fees on each rejected check. 

This new legislation (S1465) requires banks to honor any subsequent checks presented to a bank if the customer's account has sufficient funds to cover those checks, even if the initial or prior check was dishonored due to insufficient funds in the checking account. 

The rationale behind this new legislation stems from the ongoing COVID-19 pandemic; specifically, the struggles in our economy and the struggles that many families continue to endure when it comes to paying their bills. This new legislation will ensure that banking customers will not be charged excessive overdraft fees and will allow customers to hold onto more of their money.

How big of an impact will this new legislation have on our economy going forward? 

We are always updating our CE courses at Lieb School because the law is constantly changing. 

While the law changes on every topic, there is no field that seems to be evolving today more than anti-discrimination law. So, we thought it important to share our updated definitive lists of protected classes within downstate New York for Fair Housing and Discrimination Law.

Note - While these lists are similar for employment discrimination law, there are minor differences in protections between the two fields and you should consult with an attorney should you have any questions.

Fair Housing Act:

1. Race
2. Color
3. National origin
4. Religion
5. Sex
6. Familial status
7. Handicap

Hi, my name is Adriana Sutich and I’m the newest member of the Lieb at Law, P.C. team. I’m waiting on admission to the Bar and then, I will be a closings attorney with the firm. At that time, I’m going to use my married name, Adriana Mason, Esq. Until then, I wanted to share my initial experience as an almost-attorney so that we could get to know one another. 

Before I started working at Lieb at Law, P.C., I had very limited knowledge of what it was like to work in real estate law.  I have a sister-in-law who works at a title company, and a family friend who used to be a real estate attorney, and when I asked them to describe what working in real estate is really like, the phrase that kept coming up was “fast-paced.” So, I knew before I started working here that real estate transactions move along quickly. This makes sense, as it is understandable that people who are buying or selling their home want to get to the closing table as quickly as possible.  In my experience, this definitely proved to be true.  In my first few days, I saw numerous instances where we would get a new deal, have the contract out that same day, the buyer’s attorney would have it signed and returned a day or two later, and then it was on to the next steps. 

What I didn’t anticipate, though, is how many things can go wrong in anticipation of a closing, and how quickly they can fall apart, sometimes at the last minute.  Some examples of last-minute events that can derail a closing include: 

1. A document needed for the closing not arriving in the mail in time. In my first few days, I saw a closing fall apart 45 minutes before it was supposed to start, for this exact reason.
2. The property was not in the exact condition as agreed upon for closing. If there are personal belongings, boxes, or anything still on the premises that isn’t supposed to be there, the closing will be postponed. 
3. There are scheduling issues. It is difficult to get all the necessary parties to be available at the same time for a closing, so if someone must cancel, the closing will have to be postponed, and the scheduling will have to start all over again.

These are just a few situations that I’ve seen during my first few days on the job. I’m sure I will encounter countless other examples as time goes on. 

What other unanticipated events do you think that I will see next?

I’m going to keep sharing my experiences so stay tuned to what I learn next.  

One of the first decisions that Governor Hochul will likely have when she is sworn in should be relatively simple. 

The new Governor should sign S858, which was delivered to the Governor on August 9, 2021, and which amends Labor Law 193 to stop employers from utilizing a narrow definition of deductions to steal wages. The amendment states "THERE IS NO EXCEPTION TO LIABILITY UNDER THIS SECTION FOR THE UNAUTHORIZED FAILURE TO PAY WAGES, BENEFITS OR WAGE SUPPLEMENTS."

As background, the Labor Law authorizes employees to sue to recover "unpaid wages, attorney's fees, and in many cases liquidated damages" for violations of Article 6 of the Labor Law. However, oddly enough, Article 6 does not contain any express obligation to pay wages. Rather, the Labor Law requires timely payment of minimum wage overtime, etc. Employees have used Section 193 ("Deductions from Wages") to try to recover for an employer's complete failure to pay wages with mixed results because Section 193 applies to unlawful deductions from wages, not a failure to pay full wages or an employer, for example, unilaterally reducing an employee's wages for a given pay period for poor performance (not technically considered a "deduction"). Employees, thus, are often left to proceed under a cause of action for breach of contract, which does not permit recovery of liquidated damages and attorneys fees. This new proposed law, which the new Governor should sign, clears up any confusion by clarifying that any non-payment is a deduction and damages are recoverable, including attorneys' fees.

According to the Bill's justification, "employees must be paid what they are owed, no matter what."

If you haven't been paid, you have 6 years under the Labor Law to pursue your wages.

Have you been paid everything that you are owed? If not, you should contact an employment attorney.

According to the current version of the INVEST in America Act, which passed the Senate on August 10, 2021, all "contractors and subcontractors utilized in carrying out activities funded under title 23, United States Code, should institute respectful workplace policies and provide effective, ongoing workplace training to create safe, respectful work sites that are free from bullying, hazing, discrimination, or harassment." 

For clarity, title 23 of the United States Code is the law about highways. So, if you plan on working on the highways, anti-discrimination trainings must start now!

Do you think that this should be part of the law?

Is anti-discrimination training needed?

Either way, this is a signal that discrimination lawsuits are happening with increased frequency. So, protect yourself today and learn the law. 

As of October 1, 2021, Homeowners Associations will no longer be permitted to blanketly block unit owners from installing solar panels in their full discretion. 

A new NYS law, S2997, prohibits restrictions with "unreasonable limitations" on solar installation, including:

• Inhibiting solar from functioning at maximum efficiency; and 
• Increasing solar installation or maintenance costs by more than 10% of total cost of initial installation of SPS.

On August 3, 2021, CDC issued its latest eviction moratorium to address the rise of the Delta variant. 

Here is what landlords and tenants need to know about the moratorium:

1. It only applies to residential housing;
2. The moratorium only applies where tenant(s) provide a declaration to their landlord(s);
3. The Declaration is available here;
4. The Declaration requires a sworn statement that the tenant(s):
1. Have used best efforts to obtain all available governmental assistance; 
2. Earned <=$99,000 in Calendar Year 2020 ($198,000 if filing jointly) with other financial options to qualify;
3. Can't pay full rent because of stated work issues;
4. Making best efforts to pay as much as possible of rent; 
5. Would likely be homeless as a result of eviction; &
6. Resides in substantial / high COVID county.
5. Evictions are permitted for the following reasons:
1. Engaging in criminal activity while on the premises;
2. Threatening the health or safety of other residents;
3. Damaging or posing an immediate & significant risk of damage to property;
4. Violating any applicable building code, health ordinance, or similar regulation relating to health & safety; or
5. Violating any other contractual obligation (other than rent payment). 
6. Criminal penalties for violating this moratorium include a fine of <=$100,000 or one year in jail or both (<=$200,000 for organizations that violate the order).