New Coronavirus Sick Leave Laws for Employers / Employees

On March 14, 2020, to combat Coronavirus' impact on employment, the House of Representative passed a bill.

This bill must still be passed by the Senate and signed into law by the President to be effective.

If effective, this bill will provide paid leave benefits to many employees in the form of an extension of the Family Medical Leave Act ("FMLA") and the implementation of a new Paid Federal Sick Leave law.

Employers should immediately begin preparing polices and leave request forms in anticipation of this new law going into effect to ensure compliance and avoid exposure.

Here is a summary of the new leave bill as currently constituted:

1) Extension of FMLA Leave

• Applies to employers with less than 500 employees.
• Applies to employees who have been employed for at least 30 calendar days.
• Excludes health care provides, emergency responders and employers with less than 50 employees where the "viability of the business as a going concern" would be jeopardized.
• The first 2 weeks are unpaid; Remaining 10 weeks at 2/3 employee's regular rate of pay.
• Leave can be taken for the following reasons:
• In adherence of recommendation of health care provider, that employee's presence at work would place others at risk because of the employee's exposure to Coronavirus or because the employee exhibits symptoms related to the Coronavirus (these conditions must render employee unable to both perform the functions of his/her job while complying with the recommendation/order);
• To care for a family member, where a health care provider or authority determines that the family member needs to remain isolated from the community because he/she has been exposed to the Coronavirus or exhibits symptoms of the Coronavirus; or
• To care for a child whose school is closed or his/her regular childcare provider is unavailable.

2) Paid Sick Leave

• Applies to employers with less than 500 employees. 
• Employers are required to pay employees up to 80 hours of paid sick leave.
• Paid sick leave may be used for the following reasons:
• To self-isolate because employee was diagnosed with Coronavirus;
• To seek medical care if employee is experiencing symptoms related to Coronavirus;
• To comply with recommendation/order by health care provider or public official that employee's presence in the workplace would jeopardize the health of others because of employee's exposure to the virus or the employee exhibiting symptoms of the virus;
• To care for a family member who qualifies under the previous provision; or
• To care for a child whose school is closed or his/her regular child care provider is unavailable. 
• Employers must pay all employees who qualify at the employee's regular rate of pay. However, if employee's leave is a result of the 4th or 5th reason above, employer must only compensate employee at 2/3 of his/her regular rate of pay. 

3) Timing/Job Protections/What is not Covered?

• The bill would take effect 15 days after it is enacted and would be effective only until the end of 2020.
• Position is protected until return from leave unless employer, who employs 25 or fewer employees, eliminates position due to a downturn in economic conditions as a result of the Coronavirus. However, employers would still have to make "reasonable efforts" to restore employee to the same or equivalent position.
• This bill, as presently constituted, does not provide protections for employees whose employment is suspended or terminated due to employer closures.

Real Estate Tips: How to Invest with Partners

Real Estate Investing Coach Andrew Lieb discusses how to structure your agreements when investing in real estate with partners. Have you considered each party's roles and responsibilities, capital contributions, buy out options, and how to limit exposure to your personal assets? It's time to structure your deals with more than a handshake.

Listen to this podcast here

Coronavirus & Foreclosure: It's about to get real

With quarantine, foreclosures are next.

We are heading for a recession and possibly a depression the likes of which we haven't seen before.

Jobs are going to be lost, tenants aren't going to pay rent, mortgage payments are going to be missed and banks will have no choice but to start to pursue foreclosure.

If you are currently in a foreclosure proceeding, you should know that the courts have just rescheduled (adjourned) all foreclosure settlement conferences (CPLR 3408) for at least 45 days while they work on new orders and directives for the process.

This is going to be a mess.

If you are concerned about your mortgage, you need to act immediately and negotiate a forbearance (i.e., banks often agree to refrain from pursuing a foreclosure for a period of time for no or reduced payments) with a lender before going into default.

Get ready - the next foreclosure crisis is here.

NYC Housing Court on Eviction Moratorium Due to Coronavirus

Effective March 13, 2020, the New York City Housing Courts are on a one-week moratorium on evictions in New York City, subject to further extension upon review. Further, New York City Housing Court is also directed to decline to issue new eviction warrants when a party has not appeared in court, until further notice.

This moratorium is imposed through a memorandum on the coronavirus from the Chief Administrative Judge of the State of New York Unified Court System. You can read the memorandum here.

Attention Idiots - You will get sued if you ignore quarantines & expose others to COVID-19

Coronavirus is NOT a HOAX - idiots - you are killing people.

A lot of people ask me what the MPH stands for after my name - Master in Public Health.

Plus, that Esq. thing makes me a litigator.

I keep reading about unqualified people telling you about coronavirus - well, I'm qualified & maybe it's time that we go back to relying on a meritocracy where you listen to the ones with diplomas on the wall rather than some rambling buffoon. This blog should help motivate you.

Did you know that Courts have ruled that "[a] duty to disclose has been held to exist where the
defendant knew or should have known that he or she had a communicable disease?"

Under the NYS Public Health Law §2(1)(l), a communicable disease "means infectious, contagious or communicable disease." Further, pursuant to 10 NYCRR 2.1 "Severe or novel coronavirus" is designated as a "communicable disease".

Based upon established case law, if someone is infected with coronavirus from an idiot who breaks quarantine they should sue for negligent transmission of the disease. Silver v. Levittown Union Free School District

I'm talking to you, idiot who took the plane to Florida
I'm talking to you, idiot who went to the daddy-daughter dance
I'm talking to you, idiot who went to a business event

This is not a joke, a drill, a hoax, a conspiracy or something the Democrats are doing to Trump - this is life & death.

If that doesn't matter to you, I hope the fact that you now know that you will be sued changes your mind.

If it doesn't, did you know that NYS Public Health Law §2120 permits involuntary commitment of dangerous and careless patients? Plus, §2101 has reporting requirements for physicians, superintendents or officers of institutions, householders, hotel or lodging housekeepers, or any other person where a report must be made to the health officer of the local health district.

What this means is if you are a conspiracy theorist on coronavirus, we are watching you, we are reporting on you, we will sue you and you will be quarantined anyway. Get it?

Please respect quarantines - they matter!

Coronavirus & Commercial Leasing: What happens when your tenant doesn't pay rent?

Landlords - Here is your future:

• There is a Coronavirus quarantine (voluntary or mandatory), which closes your property;
• Tenant is forced to close;
• Being closed, tenant makes no revenue or limited revenue from working from home;
• Without revenue, tenant defaults on rent;
• Without rent, landlord is now at risk of foreclosure and bankruptcy; and
• Consequently, landlord will need to enforce its lease to stave off foreclosure and bankruptcy.

Can landlord successfully enforce its commercial lease?

If landlord seeks to enforce the lease, tenant will likely counterclaim for a rent abatement (reduction or elimination of rent) because of its inability to utilize the property. 

Who is going to win? 

The result likely depends on whether the lease has a clause called a "Force Majeure" or "Non-Performance" or something like that. 

This clause may read something like this: 

The Parties shall not be liable for any failure, delay or interruption in performing such Party's respective obligations hereunder due to causes or conditions beyond the control of such Party. Further, such Party shall not be liable unless the failure, delay or interruption shall result from the failure on the part of such Party to use reasonable care to prevent or reasonable efforts to cure such failure, delay or interruption.

"Causes or conditions beyond the control of such Party", shall mean and include acts of God ... war ... acts of third parties for which such Party is not responsible ... or any other condition or circumstances, whether similar to or different from the foregoing (it being agreed that the foregoing enumeration shall not limit or be characteristic of such conditions or circumstances) which is beyond the control of such Party or which could not be prevented or remedied by reasonable effort and at reasonable expense.

If the clause exists, the landlord has a shot at victory, but without the clause, the tenant will likely prevail, at least in part.

If the clause exists, the landlord's victory is dependent on the specific language of the clause. That is because of the rule that "[o]rdinarily, only if the force majeure clause specifically includes the event that actually prevents a party's performance will that party be excused." As a result, the language of the clause is everything.

Assuming the sample clause exists in the lease, here are the impending battlegrounds for ensuing litigation on enforcing the lease:

• Is Coronavirus an act of god? 
• If yes, is a quarantine resulting from Coronavirus also an act of god?
• If no, is a quarantine resulting from Coronavirus an act of third-parties? 
• If yes, did landlord undertake efforts to prevent the quarantine at the property? 
• If yes, were those efforts reasonable? 
• If no, did landlord undertake efforts to remedy the Coronavirus spread at the property?
• If yes, were those efforts reasonable?  

We know that these lawsuits are coming and they are going to come fast. These lawsuits came after 9/11 - see One World Trade Center LLC v. Cantor Fitzgerald Securities. Only this time they are going to be everywhere because unlike 9/11, Coronavirus is everywhere.

Landlords - now is the time to ascertain your rights, determine your enforcement plan and create a contingency strategy. If you cannot enforce your lease, it's time to contact your lender and seek a forbearance (temporary reprieve from mortgage payments to avoid foreclosure). Doing nothing will create a strong likelihood of foreclosure and bankruptcy. It's time to act.