New York State has delayed the deadline for at least three (3) months after facing heavy lobbying from health care facilities (nursing homes, hospitals, adult care facilities/assisted living, hospices, and home care) to abide by the February 21, 2022 deadline for nurses at those facilities to get the COVID vaccine booster shot. The State found that the concerns of staffing shortages the booster deadline would create outweighed its desire to get all nurses boosted—likely somewhat encouraged by the improving COVID numbers. During the three (3) month extension, the State will continue to encourage the estimated 25% of nurses in those facilities who are not boosted to do so. Private practice nurses and those working outside of the facilities listed above were not subject to the booster deadline, but their employers may opt to require it. If you have any questions about the COVID booster deadline for nurses, or any other COVID or Labor & Employment law topic, please contact Paul Keneally, the author of this blog post at 585-258-2882 or pkeneally@underbergkessler.com, or any other member of our Labor & Employment Law Practice Group. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

February 7, 2022 Contact: Karen Marr 585.258.2897 FOR IMMEDIATE RELEASE ROCHESTER, N.Y. - Underberg & Kessler LLP has appointed Thomas F. Knab as the Firm’s new Managing Partner. He is currently the Partner in Charge of the Buffalo office and Chair of the Firm’s Litigation Practice Group. He is the Firm’s General Counsel, as well as a member of the Executive Committee and the Recruitment and Development Committee. He will continue to work out of both the Buffalo and Rochester offices and maintain his current client service responsibilities. Knab joined the Firm in 2009 as a Partner. “Tom received the partnership’s vote to spearhead the Firm’s continued growth and strategic vision while maintaining our goal of providing clients with first-rate legal advice, guidance, and service,” outgoing Managing Partner Anna Lynch said. “I am thrilled to support him in this role.” After 18 years serving as Underberg & Kessler’s Rochester Managing Partner, Anna Lynch will scale back her administrative duties to the Firm so that she may focus on client work. As part of what has been a two-year transition planning process, she will devote her time and effort to supporting Tom in his new role and serving the Firm’s healthcare clients. About Underberg & Kessler LLP: Underberg & Kessler LLP is a full-service law firm consisting of 30 attorneys and 12 paralegals supported by a diverse and dedicated professional staff. Our tradition of community involvement is one that is very important to the Firm and one which the Firm seeks to perpetuate. We welcome and encourage growth and are committed to maintaining the high professional standards first established by our founding partners while retaining a collegial and collaborative atmosphere. We consider all employees of the Firm to be one of our most valuable resources. We are committed to quality service, teamwork, and cooperation. Additionally, we have been selected as a Best Law Firm® to work with and 14 of our attorneys have been selected as a Best Lawyer® in their area of practice since 2013.

This week, New York made a series of announcements concerning the State’s ongoing response to the COVID-19 pandemic. First, beginning Thursday, February 10, 2022, New York will lift the statewide mask mandate for businesses and other indoor spaces. Mask requirements will, however, remain optional for businesses, local governments, and counties to enforce. Masking requirements will remain in place in K-12 schools until at least early March. Masking will also remain in effect in certain areas with high concentrations of people, including public transit, planes, correctional facilities, childcare, and nursing homes. Following the lessening of the mask mandate for business, the New York State Department of Labor (NYDOL) revised its model for HERO Act airborne infectious disease plans (here). In the model plan, the NYDOL recommends, but does not require, masking in indoor areas with no vaccine requirement as a condition of entry. Second, the NYDOL also revised its guidance concerning COVID Paid Sick Leave (COVID PSL). Although last week the State seemed to suggest unlimited terms of COVID PSL for employees (see U&K article here), the updated guidance states that employees are limited to receiving COVID PSL a maximum of three (3) times. As before, the second and third occurrence must be the result of the employee’s positive test documented by a licensed medical provider or testing facility. No documentation is needed for a positive test result if the employer administered the test. Consistent with updated guidance concerning the length of time recommended for those unvaccinated to quarantine after COVID-19 exposure (as little as five (5) days), the NYDOL further clarified that COVID PSL is only available during an order of isolation or quarantine. Meaning, benefits are not available to employees who do not meet this revised standard of quarantine (which ends five (5) days after exposure if the individual is asymptomatic and subsequently tests negative or if employee has no COVID-19 symptoms and does not test). If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

Underberg & Kessler is proud to share that our partners, Leah Tarantino Cintineo & Jennifer Shoemaker, were chosen to be on The Daily Record’s Power 20 Family Law list for 2022! "This list includes lawyers who have spent much of their career working in family law. The people on this list help clients navigate some of the most challenging times in their lives. They guide people through divorce, child custody and support, adoption, prenups and postnups, and more. The need for strong legal advocacy has been heightened over the past two years as COVID-19 has added even more stress and uncertainty to processes that were already full of both. These attorneys continued to serve their clients admirably while navigating new ways of doing business thanks to restrictions that limited or halted face-to-face meetings." - The Daily Record For more on this recognition, click HERE.

On Tuesday, January 25, 2022, the Honorable Robert J. Miller, Associate Justice with New York’s Appellate Division, Second Department, granted the State’s request for a stay, restoring the mandate that requires businesses and venues to have a mask requirement ensuring all patrons over two (2) years old wear a face covering in public if social distancing is not possible and proof of vaccination is not required upon entry. This means the mask mandate will stay in effect until the Appellate Court takes further action. By means of background, on December 10, 2021, the State Department of Health (“DOH”) announced the mandate, effective December 13, 2021. The mandate was originally intended to remain in effect until January 15, 2022, but was extended through February 1, 2022. Notably, the mandate applies to many types of entities across the state, including public transit, homeless shelters, nursing homes/healthcare settings, correctional facilities, and notably, schools. The ensuing lawsuit, Michael Demetriou v. New York State Department of Health, et al., was filed on December 24, 2021, seeks to represent all minor school children in the State and contends that the mandate was improperly issued by the DOH instead of the Legislature in violation of individuals’ constitutional rights. The Appellate Court Stay reinstates the state’s mask mandate just a day after a lower court blocked the measure. In Monday’s Order, Judge Thomas Rademaker found that the mandate was unlawfully implemented by state Health Commissioner, Dr. Mary T. Bassett, holding that she exceeded her authority in issuing the requirement because it was not tied to any measure adopted by the New York Legislature. The measure was also promulgated without “any substantive justification” for the emergency adoption as required by State administrative law, according to Judge Rademaker. “Surely the commissioner has the authority to implement and apply rules concerning public health,” the Judge said, “[h]owever, nowhere in the public health law is the commissioner bestowed with the authority to make a law.” The State filed a notice of appeal and the motion to stay early Tuesday. The State argued that, without a stay, Judge Rademaker’s Order will impede the widespread adoption of a “highly effective method of preventing COVID-19 transmission and thus reducing the spread of the virus.” The State also argued that the “Supreme Court missed the mark in asserting that DOH, the Commissioner, and the Council lacked the requisite statutory authority because the Legislature had not issued a statute specifically delegating the authority to issue regulations regarding face-covering requirements during the COVID-19 pandemic.” Ultimately, the State contends that Judge Rademaker was wrong not only in his application of the law, but in his analysis of the status of the pandemic and the continuing need for “widespread adoption of this important health measure.” If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865. To have these legal alerts sent straight to your email, click here to subscribe to our newsletter.

On January 13, 2022, the United States Supreme Court released decisions concerning the vaccine-or-test rule on U.S. businesses with at least 100 employees promulgated by the Occupational Safety and Health Administration (“OSHA”) and the rule requiring vaccination for healthcare employees at facilities that participate in Medicare and Medicaid programs. In the decisions, justices blocked the OSHA mandate but upheld the CMS requirements. The OSHA Mandate The OSHA mandate would have applied to employers with 100 or more employees and required employees to receive a complete course of COVID-19 vaccinations or to engage in weekly testing at the employee’s expense in order to enter the workplace. The rule allowed for narrow exceptions for those who exclusively work remotely, work outdoors or had a legitimate medical or religious reason for refusing vaccination. More than 80 million people would have been affected. “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” the court wrote in an unsigned opinion, split 6-3. “Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category,” the court wrote. Liberal Justices Breyer, Sotomayor and Kagan dissented, writing that the majority has usurped the power of Congress, the president and OSHA without legal basis. “In the face of a still-raging pandemic, this Court tells the agency charged with protecting worker safety that it may not do so in all the workplaces needed,” the dissent opined. “As disease and death continue to mount, this Court tells the agency that it cannot respond in the most effective way possible. Without legal basis, the Court usurps a decision that rightfully belongs to others. It undercuts the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger,” they wrote. The CMS Mandate In a separate, simultaneously released ruling on the CMS’s vaccination rules for health care workers at hospitals, nursing homes and other facilities that participate in Medicare and Medicaid programs, a 5-4 majority sided with the Biden administration. “We agree with the Government that the [Health and Human Services] Secretary’s rule falls within the authorities that Congress has conferred upon him,” said the majority, writing that the rule “fits neatly within the language of the statute.” “After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm,” the majority opinion read. According to guidance released by CMS on January 3, 2022, facilities are compliant with the mandate if, by January 27, 2022, they have established policies and procedures for ensuring that eligible staff are vaccinated, and all staff have received at least one dose, have a pending request for an exemption, have been granted a qualifying exemption or have been identified as having a temporary delay as recommended by the CDC. By February 28, 2022, eligible staff must have completed the vaccination series (one dose of Johnson & Johnson or two doses of Pfizer or Moderna), have been granted an exemption or have been identified as having a temporary delay as recommended by the CDC. CMS said federal, state, accreditation organizations and CMS-contracted surveyors will begin surveying for compliance 30 days after publication of the guidance. Facilities that fail to maintain full compliance within 90 days after publication of the guidance may be subject to enforcement action, with termination of participation from the Medicare and Medicaid programs. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865.

On December 23, 2021, the Center for Disease and Control Prevention (“CDC”) updated its guidance on the isolation of healthcare and other essential workers – the “Interim Guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2” and “Strategies to Mitigate Healthcare Personnel Staffing Shortages.” Doing the same, the New York State Department of Health (“NYSDOH”) issued an advisory regarding the same on December 24, 2021 [1] . However, on December 27, 2021, CDC issued a press release sharing new isolation and quarantine recommendations. In turn, on January 4, 2022, NYSDOH issued updated guidance for the general public and declared the essential worker portion of its shortened isolation guidance overruled. However, the healthcare worker portions remain in effect, which is outlined below. Healthcare Workers Shortened Isolation Period Guidance NYSDOH expects an increase of mild or asymptomatic cases in fully vaccinated persons because of recent rates of positive COVID-19 cases. Recall that ‘fully vaccinated persons’ is defined as individuals who have either completed one dose of Janssen or two doses of an mRNA vaccine at least two weeks before the day the person became symptomatic or, if asymptomatic, the day of their first positive specimen. NYSDOH updated its policy after reviewing data from other variants, including Delta, which suggests vaccinated persons’ duration of infection is less than that of unvaccinated persons. NYSDOH also acknowledges current isolation periods have had the effect of substantially impacting critical services like healthcare. Its updated policy applies to fully vaccinated healthcare staff in an effort to ensure appropriate staffing is maintained in healthcare facilities. The shortened isolation period can only be applied where there is a critical staffing shortage. Employers are permitted to allow a person to return to work after day 5 of an individual’s isolation period. Day 0 is defined as either (1) the date of symptom onset, if symptomatic, or (2) the date of the person’s first positive test results, if asymptomatic. However, when not at work, individuals must quarantine at home, taking precautions to avoid household transmission until the end of a 10-day timespan. Healthcare workers who are moderately to severely immunocompromised are not eligible to return to work under this guidance. The shortened isolation period only applies to certain employees if: The person is a healthcare worker [2] ; The person is fully vaccinated; The person is asymptomatic or has mild symptoms showing improvement; and The person is able to wear a (1) well-fitted surgical face mask, (2) higher-level mask such as a KN95, or (3) a fit-tested N95 respirator, while at work. Fully vaccinated healthcare workers that return to work under this policy, must not have: A fever for at least 72 hours, without the aid of a fever-reducing medication; Symptoms or have improving residual mild symptoms; A runny nose; and More than a minimal, non-productive cough (cannot cough up phlegm) Individuals returning to work under this policy are instructed that: They should always practice social distancing from coworkers except when job duties do not permit such distancing; If they must remove their respirator or well-fitted face mask, they should separate themselves from others; and They should self-monitor for symptoms and seek re-evaluation from an occupational healthcare provider or their personal healthcare provider if symptoms recur or worsen. Table 1.1. Examples of Affected Healthcare Workers and Settings If you are interested in NYSDOH’s guidance relating to isolation and quarantine, an explanation of these updated recommendations can be found here . If you have any questions regarding this article, or if you have any Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley , the author of this piece, here or at (585)258-2820. [1] See Table 1.1 Examples of Affected Healthcare Workers for a non-exhaustive list of healthcare workers and settings affected by this policy.

On December 27, 2021, the Center for Disease and Control Prevention (“CDC”) issued a press release to provide updated recommendations related to COVID-19 procedures on isolation and quarantine for the general public. The CDC also indicated that additional guidance for the general public and special settings like schools, higher education and congregate living settings would be forthcoming. On January 4, 2022, New York State Department of Health (“NYSDOH”) released an updated guidance, adopting CDC’s recommendations on isolation and quarantine for the general public. This updated guidance overrules NYSDOH’s previous update on shortened isolation periods for healthcare workers and other essential workers. Caveat: The healthcare worker portions of NYSDOH’s previous update are still in effect (click here for that blog article) . Essential workers who are not healthcare workers are instructed to follow NYSDOH’s new guidance, which is outlined below . New York State Department of Health Recommendations The General Public Individuals who are moderately-severely immunocompromised or who are unable to wear a well-fitting mask for five days after the isolation period are to follow the standard isolation guidance, which state individuals are to isolate and quarantine for 10 days. Generally, isolation is recommended for five days. Day 0 is the day of symptom onset, if symptomatic. If asymptomatic, Day 0 is the day a positive specimen is collected. At the end of the five-day isolation period, asymptomatic individuals should wear a well-fitted mask while around others for an additional five days. An individual should test at day five with a nucleic acid amplification test (NAAT) or antigen test. If symptoms appear, individuals are advised to quarantine and seek testing. In this instance, quarantine would end when the individual tests negative for COVID-19. If an individual is exposed to COVID-19 and fully vaccinated [1] : Day 0 is the last date of exposure Quarantine is not required Wear a well-fitting mask for 10 days after the date of exposure while around others If an individual is exposed to COVID-19 and is not fully vaccinated: Day 0 is the last date of exposure Quarantine for five days Wear a well-fitting face mask for five days after the isolation period ends while around others Specific Settings 1. Schools . Schools are advised to follow current NYS school guidance regarding school attendance unless the local health department issues an alternative guidance for the school community. 2. Congregate Settings . Congregate care settings are advised to follow guidance issued by the local health department. If there has been no guidance from the local health department and in the absence of staff shortages, these individuals are to follow standard isolation guidance. If these settings are experiencing staff shortages, exposed or infected staff may return to work in accordance with the general isolation guidelines above. Note : An individual’s work restrictions may be different from their isolation and quarantine requirements [2] . NYSDOH has stated that additional updates to these guidelines may be coming as CDC’s recommendations become available for the Department’s review and consideration. If you have any questions regarding this article, or if you have any Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Katherine T. McCarley , the author of this piece, here or at (585)258-2820. [1] Fully vaccinated is defined as having received a single dose of Janssen or a double dose of an mRNA vaccine and exposure occurs two weeks or more after receiving a booster if booster eligible. [2] Work restrictions only pertain to when an individual may return to work. Isolation and quarantine requirements pertain to an individual’s day-to-day activities in the community.

The New York State Department of Labor (“NYSDOL”) recently provided information in the State Register concerning rules that impact employers and employees statewide: New York’s Paid Sick Leave Law (“PSL”) and the HERO Act. To be clear, these rules have been in force and effect for some time. What the NYSDOL has done is to clarify the application of the PSL (specifically, its adoption of rules concerning the carryover of unused sick, and the documentation requested of an employee using leave) and proposed changes to the workplace safety committees required by the HERO Act. Paid Sick Leave To remind readers, after January 1, 2022, New York requires employers with 100 or more employees to provide up to 56 hours of paid sick leave per calendar year; with 5 to 99 employees up to 40 hours of paid sick leave per calendar year; with 4 or fewer employees and net income of greater than $1 million in the previous tax year up to 40 hours of paid sick leave per calendar year; and with 4 or fewer employees and net income is $1 million or less in the previous tax year up to 40 hours of unpaid sick leave per calendar year. Employees can use accrued leave following a verbal or written request to their employer for a variety of reasons impacting the employee or a member of their family for whom they are providing care or assistance with care. And, contrary to the past practices of many employers, Section 196-b of the law prohibits an employer from paying out to employees any unused paid sick leave at year-end While no changes were made to the rule, the NYSDOL now says employers may do one of the following: (1) give employees the option to voluntarily elect to use and receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave. The published final rule also confirms that an employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee. Employers are cautioned to not penalize or otherwise retaliate against an employee for submitting such a request or attestation, as may be prohibited by Section 215 of the Labor Law. The NYSDOL does not believe a documentation requirement for leave less than 3 days is necessary for an investigation into potential employee abuse of sick leave and otherwise believes documentation requirements are sufficient. To that end, the NYSDOL intends to publish an employee attestation template. HERO Act Workplace Safety Committees In addition to requiring all New York State employers to develop and adopt a written airborne infectious disease prevention plan, the HERO Act requires all employers of 10 or more to permit the establishment of workplace safety committees. The NYSDOL has proposed regulations that differ from the current statutory framework concerning how those committees will be established and structured, and employer’s obligations under the act. Specifically, the proposals may require employers with multiple work locations that are not ‘in reasonable geographical proximity’ to have multiple workplace safety committees, contrary to the current requirement for a single committee, regardless of the number of work locations. The size of committees is also proposed to be a maximum of 12 members or one-third of the total number of employees at each worksite, whichever is fewer, and worksites with less than 10 employees will have three committee members. The proposal also provides that employers must respond with ‘reasonable promptness’ to written requests by two or more non-supervisory employees to establish a committee. A public hearing on the proposed regulations will be held on February 9, 2022, at 11:00 am. If you have any questions regarding this article, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here or at (585) 258-2865.

Underberg & Kessler is proud to share that our partner, Tom Knab, was chosen to be on The Daily Record’s Power 20 Litigation list for 2021! “This list includes lawyers who have spent much of their career working as litigators. The people on this list help their clients resolve complex legal matters that often have dire consequences for their financial well-being, whether the client is a business or an individual. These attorneys have also advocated for their clients during a time of unprecedented disruption due to the COVID-19 pandemic. They have had to navigate new rules from federal and state government and the court system and have had to embrace new ways of practicing law.” - The Daily Record Tom is the Chair of our litigation practice group. For more on this recognition, click HERE.

OSHA 100 Employee ETS Mandate for Vaccine or Weekly Test Reinstated, NYS Mask Mandate Enforcement and NYS Extension of the Activation of the HERO Act The federal Department of Labor’s Office of Safety and Health Administration’s (“OSHA”) Emergency Temporary Standard (“ETS”) mandate that employers with 100 or more employees must require full COVID vaccination or weekly testing of those employees has been stayed by the federal Fifth Circuit Court of Appeals since early November 2021 based on plaintiff’s arguments that OSHA lacked the power to issue the mandate. On Friday, December 17, 2021, the federal Sixth Circuit Court of Appeals, which had been assigned all the consolidated cases challenging the ETS mandate, vacated the Fifth Circuit’s stay, reinstating the ETS mandate, with a finding that the severity of the COVID epidemic was sufficient to authorize OSHA to act. OSHA has decided to extend the original time periods on the ETS mandate, so now affected employers must have their mandate policies (templates on the OSHA website) in place, begin tracking employee vaccination status, and require unvaccinated employees to wear masks (already required in New York State) by January 10, 2022. Then, those employers must have unvaccinated employees begin the weekly testing by February 9, 2022, or those employees will not be permitted to work. OSHA has indicated that it could issue citations to employers violating these provisions, and it is expected that any such enforcement will result from complaints made. OSHA is accepting comments about the ETS until January 4, 2022, on the information collection requirement and until January 19, 2022, regarding the remainder of the ETS. The case was immediately appealed to the U.S. Supreme Court so the ETS may get stayed again. Both federal and state officials have indicated that they are seriously considering changing the definition of “fully vaccinated” to include having received a booster shot. Governor Hochul’s recent mask mandate for all indoor public spaces in New York State (unless person is alone in an enclosed space) is to be enforced on a local level by the respective counties. Initially, the Governor said she hoped businesses and individuals would voluntarily comply with the mandate, and that the enforcement of the mandate would be optional for the counties. Perhaps to the Governor’s surprise, the Western New York counties of Livingston, Ontario, Genesee, and Yates announced this week that they would not be enforcing the mask mandate. Monroe County’s statement on enforcement of the mandate was dubious of its ability to enforce but did say the State mask mandate was consistent with the Monroe County State of Emergency. Finally, Governor Hochul has extended the activation of the HERO Act based on the continuing threat of COVID as a dangerous infectious disease until January 15, 2022. Accordingly, businesses must continue to enforce their HERO Acts plans adopted in 2021. It is likely that the HERO will be extended at least one more time past the January 15th date. If you have any HERO Act, New York State mask mandate, or the OSHA ETs, or any other Labor & Employment Law questions or concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

On Friday, December 10, 2021, New York State Governor Kathy Hochul announced that all indoor public places in New York that do not require proof of full vaccination for entry must implement a mask mandate. These measures go into effect on Monday, December 13, 2021, and will remain in effect until reassessed on January 15, 2022. Further, the State's masking requirements continue to be in effect for pre-K through 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and healthcare settings as per CDC guidelines. Businesses and venues who implement a proof of vaccination requirement can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC Vaccination Card. In accordance with the CDC’s definition of “fully vaccinated”, full-course vaccination is currently defined as fourteen (14) days past an individual’s last vaccination dose in their initial vaccine series. New Yorkers can retrieve their Excelsior Pass or Excelsior Pass Plus, here. Businesses can download the free Excelsior Pass Scanner app, here. Businesses and venues that implement a mask requirement must ensure all patrons two (2) years and older wear a mask at all times while indoors. New York State Department of Health continues to strongly recommend mask-wearing in all public indoor settings as an added layer of protection, even when not required. If you have any questions regarding this article, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan T. Biesenbach, the author of this piece, here, or at (585) 258-2865.