Twelve attorneys from the law firm of Underberg & Kessler LLP were recently named as 2021 Upstate New York “Super Lawyers” and five additional attorneys were recognized as “Rising Stars.” This honor is awarded to attorneys who have attained a high degree of peer recognition and professional achievement in their practice areas: Jim Coniglio – Government Finance Pat Cusato - Real Estate Steve Gersz – Businesses & Corporate Kate Karl – Banking Paul Keneally – Employment & Labor Tom Knab – Business Litigation Anna Lynch – Health Care Colin Ramsey - Health Care Jennifer Shoemaker – Family Law Attorney Margaret Somerset – Medical Malpractice: Defense David Tang - Creditor Debtor Rights George Van Nest - Environmental The following Underberg & Kessler attorneys recognized as “Rising Stars” are attorneys who are 40 or younger or who have been practicing for 10 years or less: Leah Tarantino Cintineo - Family Law Justin Alexander - Real Estate Serena Compitello - Banking Jessie Gregorio - Health Care Aaron Griffin - Business Litigation As always, if you have any questions, please contact us here or at 585-258-2800.

On September 14, 2021, a temporary restraining order (“TRO”) was issued by the Honorable David N. Hurd United States District Court judge for the Northern District of New York allowing New York State health care workers to seek religious exemptions to the recently issued COVID vaccine mandate due to go into effect at general hospitals and nursing homes on September 27, 2021 and at other covered entities on October 7, 2021. The State Department of Health had issued the mandate in August 2021 based on the COVID Delta variant’s continued spread throughout the state and the country. Seventeen plaintiffs sought the TRO and hope to turn it into a preliminary injunction, and then into a permanent injunction at the conclusion of the case. Plaintiffs’ legal arguments are constitutional, based on the 1st and 14th Amendments, the Supremacy Clause, and the Equal Protection Clause of the United States Constitution. The state has indicated its intention to oppose the TRO in effect and the proposed injunctions, as it filed a motion requesting that the court move up the scheduled September 28, 2021 court date on the matter to September 24, 2021. The court responded yesterday by canceling the September 28, 2021 date, extending the TRO until October 12, 2021, and stating it will decide the issue on the papers only by October 12th. The state has until September 22, 2021 to file its opposition papers, and no reply papers from Plaintiffs are permitted. The attorneys for the parties will certainly be arguing about how or if prior law permitting schools to override religious exemption claims in mandating certain vaccines will apply here. Interestingly, a United State District Judge in Brooklyn declined to issue a TRO in a similar case about religious exemptions to the COVID vaccine mandate, and the plaintiffs there have filed an expedited appeal to the Second Circuit Court of Appeals. As a practical matter, if the religious exemption is available, employees must only show a sincerely held religious belief that compels them to refuse the COVID vaccines that are currently available. Such employees may attempt to prove that sincerely held belief however they choose, and generally courts in New York have been permissive in finding a sincere belief in the context of discrimination cases. For example, the belief need not come from a long-established or well-known religion; it just needs to be sincere. 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 Paul F. Keneally, the author of this piece, here or at (585) 258-2882.

As COVID-19 cases continue to rise in the United States, President Biden announced new measures in his fight to get more Americans vaccinated affecting about 100 million workers in the United States. The most significant of these orders is President Biden’s plan for a rule requiring any employers, including private sector employers, with 100 or more employees to require their employees to be either vaccinated against COVID-19 or submit to weekly testing. The rule will be issued by the federal Department of Labor’s Occupational and Safety Health Administration (OSHA) and will affect over 80 million employees in the country. The affected employers will be required to provide time off to employees who need to be vaccinated or who may need time off to recover from any vaccination side effects. The rule is expected to be an Emergency Temporary Standard (“ETS”). The President also announced that he signed executive orders that require most federal employees and federal contractors to be vaccinated against COVID-19. This group has approximately 75 days from the date of the executive order to ensure they are in compliance. Importantly, unlike the rule planned for private employers, federal employees and federal contractors do not have the option of weekly testing as an alternative to vaccination. The only exemptions to the order are those who have disabilities or who refuse to be vaccinated based on valid religious grounds. Lastly, the President also signed an order that will require most health care workers in the country to be vaccinated. Any health care workers in organizations that receive Medicare or Medicaid reimbursements are covered, affecting about 17 million health care workers and about 50,000 providers. There is some resistance to these latest measures. We will keep you apprised of any developments of challenges to these new vaccination mandates as well as any new vaccination mandates that may impact smaller private companies in the future. If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Alina Nadir , the author of this piece, here or at (585) 258-2805.

On September 6, 2021, Governor Kathy Hochul announced that she would begin enforcing the NY HERO Act, which mandates extensive health and safety protections for workers in response to the COVID-19 pandemic. The HERO Act was previously signed into law by former Governor Cuomo in May to prevent workplace infections but was not activated at that time. Now, Governor Hochul designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to public health under the HERO Act. Originally, employers were required to adopt a plan with standards, which was to lie dormant until activated by the Governor. The announcement on Monday, September 6, now requires employers to activate those safety plans that were previously adopted. The aim is to ensure that workplace protections are in place and to help employers prepare as COVID-19 rates rise throughout the State. The HERO Act requires employers to create an airborne infectious disease standard and safety plan. The safety plan must implement various safety measures, including, but not limited to, daily health screenings, masking and social distancing requirements, hygiene stations, cleaning and sanitation procedures, quarantine protocol, and building airflow technology. Model safety plans were previously released by the State. Employers must distribute the safety plan to all employees and post it in a visible location at each worksite. For employers with an employee handbook, the safety plan must also be appended to the handbook. The HERO Act further requires employers with more than 10 employees to allow employees to form joint labor-management health and safety committees. It also includes anti-retaliation provisions for any employees who express concerns about the plans or safety related to the plans and imposes various penalties for noncompliance. Employers were required to adopt a safety plan by August 5, 2021, and to communicate the plan verbally to employees by September 4, 2021. Finally, by November 1, 2021, employers with more than 10 employees must allow employees to begin forming workplace safety committees. Additional information about the HERO Act can be found here: HERO Act Airborne Infectious Disease Prevention Plan Materials Released. If you have any questions regarding the NY HERO Act, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ericka Elliott, the author of this piece, here or at (585) 258-2830.

During Oscar season, I always look forward to watching Turner Classic Movies’ “Thirty Days of Oscar”, showcasing Academy Award winning films. This year, I watched the film “Kramer v. Kramer” (1979) starring Dustin Hoffman and Meryl Streep. As a matrimonial attorney, I watched the film with a critical eye. While it is a well-acted drama, it doesn’t reflect the ideals of modern family law. This article highlights three ways in which the child custody landscape has changed since the film was released 40 years ago. “Kramer v. Kramer” is a story of Ted Kramer (Dustin Hoffman), a workaholic advertising executive in New York City whose wife, Joanna (Meryl Streep), leaves him and their young son, Billy, because she is unhappy in the marriage. She has no contact with Billy for a period of approximately 15 months. The movie shows Mr. Kramer’s journey juggling his career and single parenthood. After a rocky start, he and Billy eventually fall into a routine and form a close bond. Fifteen months later, Mrs. Kramer returns to New York and files for custody of Billy. After a bench trial, the Judge awards custody of Billy to Mrs. Kramer. Mr. Kramer and Billy are devastated. At the end of the film when Mrs. Kramer goes to pick up Billy to move him to her residence, she decides that Billy already has a home with his father and she is not going to force him to move in with her. Fast forward to 2019 - how might a Court determine child custody given the facts of Kramer v. Kramer? First, let’s address the issue of maternal presumption or the tender years doctrine. In the movie, the father’s attorney states that the court would presume that the mother was the more fit parent based solely on her sex, even though she abandoned the child for 15 months. He notes that Mr. Kramer’s case would be very challenging to win. Notably, the maternal presumption no longer exists in 2019. More likely than not, a Judge will question whether the case should be a joint custody and shared residency case at the first appearance. The facts of the case presented at trial would then dictate why one parent should have sole custody and residency over the other. It would be incumbent on Mr. Kramer’s attorney to argue why stability and continuity for Billy with father as primary residential parent would be in Billy’s best interests. In New York State, the analysis for child custody is best interests of the child. There are multiple factors to be considered, such as the child’s wishes, the ability to provide for the child’s emotional and intellectual development, the quality of the home environment and of the parental guidance provided, the financial stability of the parties, and the ability of the parents to foster a relationship with the other parent. Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 436 N.E.2d 1260 (1982). Whether a parent is male or female should not put them at an advantage or disadvantage when determining custody. Significantly, the child, Billy, is not represented by an attorney. Today, in contested custody cases in Family Court and Supreme Court, an Attorney for the Child is appointed to serve as the child’s attorney and to zealously advocate the child’s position. Pursuant to Section 7.2 of the Rules of the Chief Judge in New York, the Attorney for the Child is subject to the ethical requirements applicable to all lawyers. The Attorney for the Child must consult with and advise the child in a manner consistent with the child’ capacities. While the child’s position is not determinative in the custody case, it is an important factor to be considered by the Court. If the Kramer family were litigating in court today, an Attorney for the Child would be appointed. Billy is elementary school age. It was clear from the movie that he wanted to continue to live with his father. With Billy’s informed consent, the Attorney for the Child would advocate Billy’s position to the Court. Billy’s attorney would call witnesses or subpoena documents in support of Billy’s position. The Attorney for the Child would actively participate in the custody hearing by presenting opening and closing statements, cross examining witnesses, and calling witnesses on Billy’s behalf. A final issue to discuss is child testimony in custody cases. In the film, Mr. Kramer’s attorney states that Billy might have to testify. In 2019, children do not testify in open court for custody hearings. Alternatively, the Attorney for the Child, in consultation with his or her client, may request that the child or children be privately interviewed with the Judge and the Attorney for the Child, on the record in a procedure called a “Lincoln Hearing” pursuant to Lincoln v. Lincoln, 24 N.Y.2d 270 (1969). The parents and their attorneys would not be present for this interview. The goal of the interview is for the Judge to obtain a full understanding of the effect of parental differences on the child, as well as an honest expression of the child’s desires and attitudes. As stated in Lincoln, “…a child, already suffering from the trauma of a broken home, should not be placed in the position of having its relationship with either parent further jeopardized by …(being) required to openly choose between them.” Lincoln v. Lincoln, 24 N.Y.2d 270. Kramer v. Kramer is a heartfelt movie showing the depth of relationships between parents and their children. Based on the facts, I argue that Mr. Kramer would have probably been granted primary residency of Billy by a Judge in 2019. Child custody law has evolved, and the public should not be misguided by Hollywood stereotypes and outdated concepts. It is the job of the family law attorney to educate their clients about the best strategy to argue for what is in the best interests of the children in the case. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Underberg & Kessler is proud to announce that 15 attorneys were selected by their peers for inclusion in The Best Lawyers in America®, 2022. Two attorneys were named “Lawyer of the Year” in their area of practice. ROCHESTER Patrick L. Cusato Real Estate Law Steven R. Gersz Closely Held Companies and Family Businesses Law Corporate Law Kate H. Karl Banking and Finance Law Commercial Finance Law Commercial Transactions / UCC Law Real Estate Law Paul F. Keneally Commercial Litigation Labor Law - Management Litigation - Labor and Employment Anna E. Lynch Corporate Law Elder Law Health Care Law Alina Nadir Litigation - Labor and Employment Edmund J. Russell III Banking and Finance Law Corporate Law David M. Tang Health Care Law Litigation - Health Care Helen A. Zamboni Real Estate Law BUFFALO Timothy P. Johnson Real Estate Law Thomas F. Knab Litigation - Insurance Litigation - Labor and Employment Colin D. Ramsey Legal Malpractice Law - Defendants Litigation - Insurance George S. Van Nest Environmental Law CANANDAIGUA Margaret E. Somerset Medical Malpractice Law - Defendants GENESEO James A. Coniglio Municipal Law Paul F. Keneally is recognized by Best Lawyers in America® as a recipient of their “Lawyer of the Year” award 2022 for his work in Litigation/Labor & Employment in Rochester, NY. Steven R. Gersz was also recognized as a recipient of the "Lawyer of the Year" award, 2022 for his work in Corporate Law in Rochester, NY. This is his third time being recognized as "Lawyer of the Year". Best Lawyers® conducts its annual peer-review survey where thousands of attorneys cast their votes on the legal abilities of other lawyers in various practice areas. To learn more about Best Lawyers in America®, click here.

On August 13, 2021, the Occupational Safety and Health Administration (“OSHA”) updated its guidance, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,” access to which can be found on OSHA’s website. Although OSHA’s update is presented in some measure in response to the July 28, 2021 “Interim Public Health Recommendations for Fully Vaccinated People” released by the federal Centers for Disease Control (“CDC”), its guidance does not clarify the CDC’s recommendations, nor does it immediately obligate employers to usher in any additional workplace protocols (at least beyond those we have been living with throughout the pandemic, a preparedness plan for which is now separately required by the NY HERO Act). By way of background, Underberg & Kessler recently published articles concerning the continuing issues faced by employers as the Delta variant spreads, particularly in light of the above-referenced CDC recommendations (available here), and the legal ability for employers to mandate vaccinations in most circumstances (available here), authored by, respectively, firm partners Paul F. Keneally, Esq. and Colin D Ramsey, Esq. OSHA’s updated guidance is largely based upon the issues discussed in each of these articles: specifically, the revised CDC recommendations and vaccination status of employees as concerns the need to mask. In essence, OSHA’s new guidance reinforces the CDC’s recommendations without explicitly adopting them. Two provisions of the guidance, one in the executive summary and one in the appendix, partially flesh out OSHA’s position on the masking of fully-vaccinated employees. First, the summary of OSHA’s new guidance provides, very generally, “[f]ully vaccinated people in areas of substantial or high transmission should be required to wear face coverings inside.” That recommendation does not appear plainly, however, in the main body of the guidance that the executive summary supposedly summarizes. The body mentions the CDC’s recommendation in the context of OSHA’s suggestion that employers supply employees with face coverings, but OSHA does not say it is adopting the CDC’s recommendation or include a section in the body of the guidance that explicitly recommends that fully vaccinated employees be required to mask under any circumstances. Second, the appendix of the guidance, titled “Measures Appropriate for Higher-Risk Workplaces with Mixed-Vaccination Status Workers”, offers a narrower masking recommendation than that of the CDC guideline. It provides: “Employers should take additional steps to mitigate the spread of COVID-19 among unvaccinated or otherwise at-risk workers due to the following types of workplace environmental factors, especially in locations of substantial or high transmission [per the CDC’s guideline].” The appendix goes on to list workplaces that pose a “heightened risk [of COVID-19 transmission] due to workplace environmental factors,” including: “manufacturing; meat, seafood, and poultry processing; high-volume retail and grocery; and agricultural processing settings.” OSHA suggests that employers with such heightened-risk workplaces should adopt best practices that go beyond the “general precautions” provided by the main body of the guidance. And one of those best practices is to “[r]equire … fully vaccinated workers in areas of substantial or high community transmission, to wear masks whenever possible, [and] encourage and consider requiring customers and other visitors to do the same.” In sum, where an employer’s workplace: a) is not in one of those listed “heightened risk” industries; or b) is outdoors; or c) includes only vaccinated, not-at-risk employees; or d) is not located in an area of substantial or high community transmission, OSHA’s position appears to be that the employer need not require that fully vaccinated employees in the workplace mask. Moreover, OSHA emphasizes that vaccination is the most effective way to protect against severe illness or death from COVID-19. Infections in fully vaccinated people (breakthrough infections) happen in only a small proportion of people who have received a full course of vaccinations, even with the Delta variant. When these infections occur among vaccinated people, they tend to be mild, reinforcing that vaccines are an effective and critical tool for bringing the pandemic under control. To that end, OSHA “strongly encourages” employers to provide paid time off to workers for the time it takes for them to get vaccinated and recover from any side effects – a recommendation which has been legally required in New York since March 12, 2021. Remember: the guidance by OSHA cannot mandate anything; it is not the law. OSHA’s guidance is not a standard or regulation, and it creates no new legal obligations for employers. As structured, the new guidance is provided for “use in protecting unvaccinated workers and otherwise at-risk workers” and “for fully vaccinated workers in areas of substantial or high transmission.” However, although OSHA’s publication is labeled as “guidance”, employers in certain industries – generally, healthcare and healthcare support settings – need to be cognizant of the mandatory OSHA COVID-19 Emergency Temporary Standard (available here). Pursuant to OSHA, employers in those industries must comply with those standards. As of August 16, 2021, healthcare workers in New York are also required to be fully vaccinated against COVID-19, with a first-dose requirement of September 27, 2021 (a copy of a press release from the Governor’s office can be found here). If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan Biesenbach, the author of this piece, at (585) 258-2865.

Many employers thought they were done grappling with COVID issues as the Summer of 2021 progressed, but that is now clearly not the case. As the COVID Delta variant surges in parts of the country, employers are once again dealing with questions about opening offices, in-person meetings, working from home and wearing masks. The latter issue, regarding masks, was directly addressed by the federal Centers for Disease Control (“CDC”) in late July 2021 when it amended its prior guidance in its “Interim Public Health Recommendations for Fully Vaccinated People” to recommend that even vaccinated individuals in counties where cases have sharply risen wear masks when in workplace common areas. Sometimes recommendations are worse than mandates as employers must decide for themselves whether to mandate masks (employers are also able to mandate that employees get vaccinated— view my partner, Colin D. Ramsey’s, blog here). Perhaps even more so than at any point during the COVID pandemic, many employees are opposing mask requirements, believing that their vaccinations provide sufficient protection. The CDC also made recommendations not directed to employers but relevant for them to know. First, the CDC stated that fully vaccinated people might choose to wear a mask everywhere if they or someone in their household are immune-compromised or otherwise at increased risk of severe disease from COVID (or if a household member is unvaccinated). Next, the CDC added a recommendation that if fully vaccinated people have contact with someone who is COVID positive or suspected to be COVID positive they should get a COVID test 3-5 days after exposure and wear a mask in public indoor settings for 14 days or until a negative test result is received. As employers may well have different policies for masked and unmasked employees, determining vaccination status becomes crucial. While employers are indeed entitled to ask employees the vaccination question, they should take care not to ask additional medical questions beyond the vaccination issue and not share any information received beyond those who need to know. For example, an employee responding to a vaccination status inquiry might have a disability and, absent a reasonable accommodation conversation, employers should not be discussing employee disabilities with them. This is particularly true if the employee is not vaccinated, as a disability could be the reason. Unless seeking a reasonable accommodation, it is wise to tell employees not to reveal disability-related information in response to a vaccination inquiry. Obviously, this is a rapidly changing subject area, so employers must keep their policies updated and track the relevant local, state, and federal laws as they evolve. Please do not hesitate to contact us with any questions. If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

On July 31, 2021, House Judiciary Committee Chairman Jerry Nadler (D-NY) and House Education and Labor Committee Chairman Bobby Scott (D-VA), reintroduced the Restoring Justice for Workers Act. At its core, this bill seeks to overrule the 2018 U.S. Supreme Court decision in Epic Systems v. Lewis, 138 S. Ct. 1612 (2018), which held that employers may lawfully require employees to agree, as a condition of employment, to pursue work-related claims in individual arbitrations. In its 5-4 decision, the Court in Epic Systems ruled that through the Federal Arbitration Act (“FAA”), individual arbitration agreements are enforceable and that neither the saving clause of the FAA nor the National Labor Relations Act (“NLRA”) operates to override that outcome. Justice Gorsuch wrote the majority opinion and was joined by Justices Roberts, Anthony, Kennedy, Thomas and Alito, with Thomas also writing a concurring opinion. In reviewing the intent of Congress in the passage of the NLRA and FAA, the majority reasoned that “Congress has instructed federal courts to enforce arbitration agreements according to their terms – including terms providing for individualized proceedings,” with the intent to create a “liberal federal policy favoring arbitration.” The late Justice Ginsburg wrote the dissenting opinion and was joined by Justices Breyer, Sotomayor, and Kagan. The dissent opined that “[t]he court today holds enforceable this arm-twisted, take-it-or-leave-it contracts – including the provisions requiring employees to litigate wage and hours claims only one-by-one…. Federal labor law does not countenance such isolation of employees.” The result of Epic Systems is significant for employers and employees alike. Millions of employees nationwide are subject to mandatory employment arbitration. Through these arbitration clauses, many workers are prohibited from seeking redress in state or federal court to enforce statutory rights, such as those promulgated by the Fair Labor Standards Act’s wage and hour protections or Title VII of the Civil Rights Act’s anti-discrimination prohibitions. Employees may also be prohibited from pursuing class or collective legal action and must instead find a venue in an arbitration forum, sometimes in another state or across the country. As proposed. the Restoring Justice for Workers Act prohibits the use of forced arbitration clauses in employment contracts and prohibits employers from requiring employees to waive their right to engage in joint, class, or collective legal action, essentially undoing Epic Systems. Similar legislation was proposed by Congressman Nadler in the years since Epic Systems. Those bills reached the subcommittee but failed to become law. Although this bill is in its early stages, the current political landscape is starkly different than during the earlier attempted legislative efforts. However, the future of the current bill is nonetheless uncertain. If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ryan Biesenbach, the author of this piece, at (585) 258-2865.

On August 5, 2021, President Biden announced that he would sign an Executive Order that sets the ambitious goal of making one-half of all new vehicles sold in 2030 zero emission vehicles, including battery electric, plug-in hybrid electric or fuel cell electric vehicles. While the goals are in line with Biden’s initial Executive Order on climate change, there are a myriad of issues associated with such a plan. In addition, if the escalation of fuel costs over the last eight months have not been enough, the cost of energy, supplies and vehicles are likely to be dramatically higher than combustion engine vehicles used by Americans today. Although the US Environmental Protection Agency (EPA) and US Department of Transportation (DOT) are charged with addressing smart fuel efficiency and reduced emission vehicle standards, there are questions whether the purported cost savings and climate impacts of the new policy account for what is necessary to produce raw materials, vehicles, and energy to fuel zero emission vehicles. Notably, the President’s announcement suggests that the proposed rules to address these two matters will “deliver around $140 billion in net benefits over the life of the program, save about 200 billion gallons of gasoline, and reduce around two billion metric tons of carbon pollution.” Additionally, that “[f]or the average consumer, this means net benefits of up to $900 over the life of the vehicle in fuel savings.” Before the vehicles can even be produced sufficient raw materials need to be acquired to provide for the electric vehicle (EV) batteries. Mandating EV by 2030 does not in any way mean that sufficient materials and production will exist to meet that level or, if so, at what cost to American consumers. A recent Wall Street Journal article noted that the International Energy Agency concluded that to get to the level of EV sales mandated under Biden’s Executive Order the demand for key materials to produce the batteries would rise dramatically by 2040, specifically: lithium (4,200%), graphite (2,500%), nickel (1,900%) and rare-earth metals (700%). There are fundamental questions about whether there are sufficient resources and where they would need to be mined. EVs in the immediate future will use lithium-ion batteries. An Autoweek story on the supply chain issue from November 2020 broke down the source issues. Lithium-ion batteries are composed of an anode made of graphite and cathode of cobalt, nickel, manganese, and other materials. These materials come from limited places in the world. Specifically, lithium is concentrated in Argentina, Bolivia, and Chile. Cobalt comes from the Democratic Republic of the Congo (DRC). Aside from the environmental and human rights issues in these emerging countries, the markets are very concentrated. Chinese companies, backed by the Chinese Communist Party, largely control the extraction and processing of these key minerals. In 2018, China was responsible for more than 85% of DRC’s cobalt ore and concentrate exports. Unfortunately, China’s vertical market control extends beyond the mining and production of raw materials to the actual battery manufacturing. The same Autoweek article noted that a single Chinese battery company supplies four major auto brands with EV batteries. Putting aside the Covid-19 issues and response from China, the last year has high-lighted the significant issues that the US can suffer from disrupted supply chains. Another issue related to sourcing raw materials is the impact of substantial mining and production on the environment. The environmental impact per EV is substantial and not something that has been addressed in the Biden Administration’s rush to address climate change. For example, a typical EV battery from a popular car maker weighs 1,200 pounds of which approximately 80% of the weight comes from mined materials. The mining impacts alone are mind boggling, with a single EV battery requiring mining 100,000 pounds of raw ore for processing. To meet the Biden EV mandate by 2030 would require the United States to have approximately 10 million electric vehicles. This would translate into mining about 500 million tons of new materials, with corresponding emissions, water use and environmental impacts. Although the Biden Administration and climate groups are vehemently opposed to coal mining and want to eliminate it, at present coal mining in the country only produces about 700 million tons per year. Another consideration underlying EV is whether the electrical grid has sufficient capacity to absorb the necessary charging process that will be required. Based on home use, typical homes use 50 kilowatts (kw) per day. Most is during peak night-time hours when families are home. The average electric draw during night-time hours is about 4 kw per hour. The power grids are not built with excessive capacity and a group of up to 7 homes is usually serviced by a 20 kw transformer. By comparison, a typical EV charger requires 12 kw per hour (for about 30 miles of driving). Consequently, adding multiple EV chargers in the same suburban neighborhood would quickly surpass the capacity of the local electrical grid. As a result, to provide adequate energy supply for EV charging the electrical supply will need significant upgrades. At the same time President Biden is pushing climate changes policies, electric vehicles, and increased fuel mileage requirements his actions since taking office have dramatically impacted the price of gasoline. The decision to kill the Keystone pipeline project and place a moratorium on federal oil and natural gas leases in the Artic National Refuge have been compounded by ransomware attacks that shut down east coast petroleum pipelines. Despite an abundance of US petroleum supplies under the Trump Administration, last week Biden was forced to ask OPEC to increase oil supplies. Predictably, OPEC declined saying they “believe oil markets do not need more oil than they already plan to release in the coming months.” Consequently, while Biden is pushing green priorities through Executive Orders and the infrastructure bills, American consumers are facing significant cost increases. Prior to the election a barrel of crude oil was under $40 per barrel. It is now about $63 per barrel. As a result, the price of gasoline is almost 50% higher today than prior to the presidential election and OPEC, which includes Russia, have no interest in increasing the supply of petroleum to reduce fuel and gasoline prices in the US. Finally, but underlying the transition to EV is the question of where sufficient electrical power will come from to provide charges for the EVs. Obviously, the Biden Administration and many states, such as New York, disfavor traditional electrical generation facilities based on coal or natural gas. Similarly, nuclear power plants are not popular with the green programs and activists. Solar and wind power have limitations based on capacity and production (i.e., daytime) when most EV charging takes place at night. Whatever one thinks about climate policies, there are some very practical realities that the country needs to consider in any transition to EVs, whether voluntary or by government mandate. The supply of raw materials, cost of vehicles and access to electric power to charge EVs would seem to be at the very core of considerations as to when, if and how fast to ask Americans to make a transition to EVs. In addition, rising inflation and fuel costs are presenting real challenges to American consumers. Unfortunately, it appears that policy announcements and artificial deadlines are dictating policy rather than a considered approach to ask Americans to make such a drastic transition. If the last week in Afghanistan has shown anything about the current administration’s policies, it appears that once headed down an announced path there is little consideration given to alternatives and flexibility to address difficult challenges. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest , the author of this piece, here or at (716) 847-9105.

The ‘new normal’ of practicing law remotely has its challenges. Zoom depositions are one of them. Preparation is tedious. Computer screens notoriously freeze mid-sentence. And how about those lawyers who love using the limitations of virtual testimony to feed helpful hints to their witnesses? As annoying as they can be, Zoom depositions are likely here for good. They are cost-effective, timesaving, provide easier accessibility for all parties involved, and help insulate us from contagions. There are three things you are trying to control during a deposition, and all are more difficult with Zoom—your evidence, your witness, and your opposing counsel. Here are a few pointers learned over the past year: Controlling Your Evidence 1. Premark exhibits, make an index, and organize exhibits to chronologically follow along with your outline of inquiry. 2. When you save an exhibit in your laptop for use at the deposition, format them to properly display on screen automatically and call it the name you want to use when speaking with the witness so that your transcript will match the electronic exhibit. 3. Send all your exhibits to the court reporter the day before the deposition. 4. When showing exhibits to a witness, you can share the screen from your own computer—this works if you don’t have many documents to manage—avoid having more than a couple documents open on your laptop so it’s easier to discern one from the other. 5. If there are several photos, put them into a PowerPoint—it is easier to pull one PowerPoint that contains 50 photos than sort through dozens of JPEG images on your laptop. Controlling Your Witness 1. Advise the witness that you have agreed to certain rules during the Zoom deposition and, if the witness cannot agree to the terms, you will have to reschedule the testimony in person. 2. Ensure the witness is alone in the room from which he or she is broadcasting by having the witness hold up the camera and do a 360 in the room. 3. Ensure the witness does not have a smartphone or second computer in the room to phone, text, or email a friend for help. 4. Enumerate the usual stipulations and explain them to the witness—this will serve as a reminder to opposing counsel that all objections, except as to form, are preserved. 5. Remind the witness they should not review material related to the case during breaks unless all counsel agree that they will be reviewing something specific. Controlling Your Opposing Counsel 1. Don’t let opposing counsel answer for the witness under the guise of ‘helping’ with the unusual format. 2. Don’t let opposing counsel direct the witness not to answer a question, unless they can articulate some privilege that applies to the subject. 3. Remind defending counsel that the witness is supposed to answer the question even if there is an objection (typically, only a privilege or a court order limiting testimony can prevent the witness from testifying). 4. If opposing counsel is being an obstructionist, remind them that Rule 221.1 still applies, even in this unusual EBT format. 5. Keep track of the elapsed time during breaks so that you do not cheat yourself on the 7 hours to which you are limited. A refresher on Rule 221 is particularly helpful when dealing with difficult lawyers in Zoom depositions. Harold A. Kurland, Esq. wrote a good summary of Rule 221.1 in the notes of West publication of CPLR 3115. See also, Freeman v Fayson, 41 Misc.3rd 1236(A) (New York County 2011), that discusses various common speaking objections and explains why they do not provide a proper basis for directing a witness not to answer a question. The overall theme is that objecting counsel cannot tell their witness not to answer a question based upon most of the reasons that we tend to hear day to day. It does not matter if defending counsel doesn’t like the form of the question, or doesn’t understand the question, or that the question is a hypothetical, or seeks an opinion from the witness or because it assumes facts not in evidence, or because it is hearsay or any other reason of that ilk. As the deponent you are still entitled to have the witness answer the question. If you should experience objections and interruptions in a Zoom deposition, there are remedies. The bottom line is that obstructive conduct by attorneys in the guise of zealous advocacy is improper—Zoom or no Zoom. If you have any questions regarding the issues discussed above or if you have any other Litigation concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Margaret E. Somerset at (585) 919-6080 the author of this article.

This post was co-authored by David H. Fitch and Margaret E. Somerset. By all accounts, we are back to normal with litigation in New York. Vaccines are working, masks are off in public, and the first Covid-19 claims are getting filed. The initial cases are largely breach of contract or labor law claims, but medical malpractice claims are likely just around the corner. A few cases have already started in other states.[1] Many health care professionals are worried about liability for all the deaths that occurred in the past year from this terrible disease. In this article, we review the state and federal laws that may offer some degree of immunity to health care professionals in New York during the Covid-19 pandemic. New York State Emergency and Disaster Treatment Protection Act (“EDTPA”) At the beginning of Covid-19, broad immunity from civil and criminal liability was extended to nearly all medical providers with an executive order by Governor Cuomo.[2] In April 2020 a parallel law (EDTPA) was passed that extended immunity to almost all health care providers working in New York State during the pandemic.[3] That immunity was retroactive to March 7, 2020 and covered nearly all health care providers as long as they were acting in good faith (i.e., without gross negligence or intent to harm someone). Governor Cuomo used this tool to offload the pressure on our health care system and to encourage health care providers to keep working under extraordinary circumstances that placed them and their own families at risk. In the face of heavy political opposition, immunity under the EDTPA was narrowed in August 2020 to only cover health care providers if they were treating or diagnosing Covid-19 patients.[4] This limitation was retroactive to April 3, 2020 (when the initial EDTPA became effective). Critics argued that the statute had to be narrowed because it would unfairly insulate nursing homes where death rates were high. On April 7, 2021, the EDTPA was repealed in its entirety. However, this does not mean that health care providers lost immunity from civil and criminal liability. For patient deaths between March 7, 2020 and April 3, 2020, health care providers still retain broad but qualified immunity under the EDTPA so long as they were not grossly negligent or malicious. (We discuss the meaning of gross negligence in our blog of May 1, 2020[5]). For patient deaths between April 3, 2020 and April 7, 2021, health care providers have limited immunity so long as they were treating or diagnosing a patient with Covid-19 and they were not grossly negligent or malicious. For deaths that occur after the repeal of the EDTPA, New York State will no longer provide immunity from either civil or criminal liability. However, there is a federal law that may provide some additional protections – the Federal Public Readiness and Emergency Preparedness Act (“PREP Act”). Immunity Under the Federal Public Readiness and Emergency Preparedness (“PREP”) Act The PREP Act was enacted in 2005 to provide the federal government the ability to push private companies to respond, as directed by the government, to address public health emergencies such as a pandemic. Under the PREP Act, the federal government can direct the manufacture of personal protective equipment or ventilators the development of experimental therapeutic treatments or the expedited production of vaccines. 42 U.S.C. § 247d-6d(a)(1). In exchange for complying with federal authorities to help address a public emergency like Covid-19, the federal law authorizes the Secretary of the U.S. Department of Health and Human Services to provide immunity to a “covered person[6]” from “suit and liability under Federal and State law with respect to all claims for loss caused by, arising out of, relating to, or resulting from the administration to or the use by an individual of a covered countermeasure.” In other words, the companies or providers who help to carry out the government’s emergency directives are extended immunity from state and federal liability. The Act does not provide immunity when willful misconduct results in injury or death. Last fall, the General Counsel’s Office of the Department of Health and Human Services determined that senior living communities are a “covered person” under the PREP Act. The finding is significant as the Act establishes immunity from civil liability for the use or administration of “covered countermeasures[7]” that facilities implement to prevent the spread of the virus. Countermeasures that are covered include “drugs, biologicals, and devices, including those used to diagnose, mitigate, prevent, treat, or cure Covid-19.” Examples include the use of PPEs, screening for the virus, social distancing, and limiting visitation. Under the statute, countermeasures do not need to be perfect or 100% effective in preventing the spread of the virus. A recent decision out of the U.S. District Court in California held that measures taken by a senior living facility in response to Covid-19 were eligible for complete liability immunity under the PREP Act. Garcia v. Welltower OpCo Grp. LLC, 2021 U.S. Dist. LEXIS 25738 at *1-26 (CD Cal 2021). The Garcia plaintiffs sued the defendants alleging elder abuse and neglect, wrongful death, and intentional infliction of emotional distress. The claims stem from resident Gilbert Garcia’s death in July 2020 from Covid-19, which the resident’s sons allege was due to the facility’s failure to “implement appropriate infection control measures or follow local or public health guidelines in preparing for and preventing” the spread of the virus. Plaintiffs further allege that the home failed to follow its own policies and procedures requiring screening and monitoring of residents and staff for symptoms, failed to have enough personal protective equipment (e.g., masks), and failed to adequately limit visitation to the home. The court held that the PREP Act provided the home complete immunity from civil liability due to the actions it did take to protect its residents from Covid-19 and granted defendants’ motion to dismiss the case. This is a significant ruling for the senior living and post-acute industry as it establishes that the Act provides broad immunity from civil liability when a facility employs countermeasures to prevent the spread of the virus. Furthermore, the decision indicates that the countermeasures implemented by such facilities do not need to be flawless to be covered by the immunities conveyed in the PREP Act. Liability Protections for Other Health Care Providers At the end of January 2020, the HHS Secretary acknowledged the proliferation of the virus around the globe by declaring a public health emergency. In March 2020, the Secretary issued a Declaration which triggered the PREP Act’s immunity from February 4, 2020 through October 1, 2024.[8] Since then, the Declaration has been amended to define “qualified persons” as licensed health care providers (e.g., physicians, nurses, technicians, pharmacists), including those who are permitted to prescribe, administer, or dispense covered countermeasures. Further amendments broadened that definition to include care providers authorized to administer Covid-19 vaccines.[9] The scope of the retroactive immunity provided by EDTPA and the PREP Act will invariably be addressed by more courts around the country in the coming months. Therefore, it is crucial for “qualified” providers to be aware of the changing legal landscape. If you have any questions regarding the issues discussed above or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or David H. Fitch at (585) 258-2840 or Margaret E. Somerset at (585) 919-6080 the co-authors of this article. __________________________________________________________________________________ [1] Garcia v. Welltower OpCo Grp. LLC, 2021 U.S. Dist. LEXIS 25738 at *1-26 (CD Cal 2021); Townsend v. Penus, 2021 NYLJ Lexis 524 (Sup Ct, Bronx County 2021); Rachal v. Natchitoches Nursing & Rehab. Ctr. LLC, 2021 U.S. Dist. LEXIS 105847 at *1-15 (WD La 2021) [2] https://www.underbergkessler.com/post/malpractice-immunity-for-medical-professionals-treating-patients-during-covid-19 [3] https://www.underbergkessler.com/post/how-does-the-new-immunity-law-in-ny-apply-to-health-care-providers-during-the-covid-19-emergency [4] https://www.underbergkessler.com/post/what-does-new-york-s-amended-covid-19-immunity-law-mean-for-providers [5] https://www.underbergkessler.com/post/provider-immunity-under-edtpa-a-closer-look [6] Under the Act, the Secretary can deem a “covered person” to be a manufacturer and/or distributor of a countermeasure, a “program planner” (individuals or facilities that plan, administer, or supervise programs that distribute the countermeasure), and/or a “qualified person” (individuals that prescribe, administer, or distribute countermeasures, including healthcare providers). [7] A “covered countermeasure” is defined in the Act as a drug, device, or biological product determined by the Secretary to be a “priority for use during a public health emergency.” 42 U.S.C. § 247d-6d(i)(1). [8] 86 Fed. Reg. 15198 (March 17, 2020) [9] 85 Fed. Reg. 79190 (December 9, 2020)