This article was published in The Daily Record on August 24, 2020 - Download the Reprint On July 18, 2019, Governor Cuomo, signed the Climate Leadership and Community Protection Act (CLCPA). The legislation was described in the Governor’s press release at the time of adoption as “the most ambitious and comprehensive climate and clean energy legislation in the country.” NYS Department of Environmental Conservation (DEC) is issuing proposed regulations this week under the CLCPA. The overall requirements are dramatic and are intended to re-shape New York’s energy, transportation and building sectors in the next few decades. First, CLCPA requires the State to attain a carbon free electricity system by 2040 and reduce greenhouse gas emissions by 85% below 1990 levels by 2050. The Governor has touted the program as “setting a new standard for states and the nation to expedite the transition to a clean energy economy.” The legislation is said to spur investment in clean energy technologies such as wind, solar, energy efficiency and storage, with targeted investment in disadvantaged communities and thousands of new jobs. The Governor has asserted that CLCPA will improve public health, quality of life and provide the State with more clean energy choices. The CLCPA requires the NYS Department of Environmental Conservation (DEC) to adopt regulations to attain an initial 40% reduction in emissions from 1990 levels by 2030 and an 85% reduction in greenhouse gas emissions by 2050. DEC issued draft regulations in the State Register on August 19, establishing a new 6 NYCRR Part 496 captioned Statewide Greenhouse Gas Emission Limits. The regulations will cover the entire breath of the NYS emission sources from energy, transportation, buildings and development. Significantly, internal combustion engines (gas or diesel), as well as boilers and furnaces are included under the scope of greenhouse gas emissions sources. The proposed regulations set the 1990 baseline, per the CLCPA, which includes all NYS sources of greenhouse gas emissions, along with emissions from imported electricity and fossil fuels. The draft regulations establish statewide emission limits on natural and man-made gases, including carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorcarbons, and sulfur hexafluoride. The regulations set the estimated statewide greenhouse gas emission limit in 1990 at 401.38 million metric tons of carbon dioxide equivalent based on reference to Global Warming Potential of greenhouse gases as provided by the Intergovernmental Panel on Climate Change. The regulations further provide that the 2030 level of 60 percent of the 1990 level shall be 240.83 million metric tons and the 2050 level of 15 percent of the 1990 level be 60.21 milllion metric tons. The DEC will accept written public comments on the draft regulations through October 27, 2020. The CLCPA and regulations enact the Governor’s “nation-leading goals as called for under his Green New Deal,” requiring that at least 70% of New York’s electricity from renewable energy sources such as wind and solar by 2030 in order to attain 100% carbon neutral by 2040. Hence, the CLCPA requires NYS to be 100% zero emission electricity by 2040. In addition, the Governor’s goals of “nation-leading commitments” to install 9,000 megawatts of offshore wind by 2035, 6000 megawatts of solar by 2025, and 3,000 megawatts of energy storage by 2030. The proposed CLCPA regulations come about two months after NYS Department of Public Service (DPS) and NYS Energy Research and Development Authority (NYSERDA) issued a white paper on an expanded Clean Energy Standard (CES) that is aimed at accelerating renewable energy, combating climate change, decarbonization of the electric generation system and creation of clean energy jobs. The joint press release noted that the proposed CES aims to re-focus “New York’s existing and relevant regulatory and procurement structures on meeting the critical goal of meeting 70 percent renewable electricity by 2030 and setting the State on the rapid and irreversible path to achieve a carbon free power sector by 2040 in order to align with the goals laid out in New York’s nation-leading [CLCPA].” The new CES will attempt to implement the CLCPA requirements while identifying targets for large scale renewable energy procurement. The proposed CLCPA regulations are another step in implementing the CLCPA in an effort to re-shape the State’s energy and economic structure to meet the greenhouse gas emission standards and performance standards.While the Governor and environmental groups have supported the passage of the legislation and will likely do the same with the proposed regulations and Clean Energy Standard, the costs and impacts to New York businesses and residents have not been a part of the discussion.As a result, it is unclear whether environmental regulatory technology, public support and economic impacts will sustain the extremely aggressive goals mandated by CLCPA. Particularly as the State seeks to dig out of the economic impacts created by the COVID-19 pandemic which has had a profound effect on businesses of all size, State, local and county revenues and deficits. If you have any questions, please contact George S. Van Nest here or at 716-847-9105.

The federal Centers for Medicare and Medicaid Services (CMS) issued a press release yesterday (August 25, 2020) about its proposed interim final rule to require all nursing homes to conduct COVID-19 testing of staff (including volunteers and those “under arrangements” such a hospice workers who have physical contact with residents) and residents. The Secretary of Health and Human Services is to issue parameters for this testing, including frequency, the criteria for testing asymptomatic persons (based on the positivity rate for the county in which the facility is located), response times for tests and other factors as determined by the Secretary. The new requirements, once actually in place, will be added to the infection control requirements in 42 CFR 483.80 applicable to nursing homes that participate in Medicare and Medicaid. In this proposed rule, CMS is seeking comments on the parameters that are to be set by the HHS Secretary for the testing protocols. As New York requires nursing homes to conduct testing of its staff at least once a week, these testing requirements are not likely to have much practical effect on New York facilities. The proposed rule now requires that nursing homes report each week on their testing results and includes new civil money penalties (CMP) for failure to do so in a timely manner. The minimum CMP will be $1,000 for the first time a facility fails to comply, with a $500 incremental increase for each subsequent failure. So, for example, a facility that fails to report in week 1 will be assessed $1,000. If it fails to report again in week 2, it will be assessed $1,500. If it reports as required in week 3, but then again fails to report in week 4, the CMP will be $2,000, and so on, up to the maximum per occurrence of $6,500. Each failure to timely report will also be deemed a level “F” deficiency. These new reporting requirements are in addition to, and do not override existing New York State reporting requirements or penalties. Because of the public health emergency declared by the President, CMS is putting the new weekly reporting requirements and the CMP into effect immediately upon its publication in the Federal Register. There is no announced date for this publication, but it is expected soon. For additional information about 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 Helen Zamboni, the author of this piece, here or at (585) 258-2844.

David M. Tang, a partner of Underberg & Kessler LLP, has been selected to become a Fellow of the American Bar Foundation. The Fellows of the American Bar Foundation limits membership to one percent of the licensed U.S. attorneys. The Fellows are an international honorary society of lawyers, judges, law faculty, and legal scholars. Fellows are recommended by their peers and approved by the Board of the American Bar Foundation. As stated by the American Bar Foundation, "Nomination as a prospective Fellow is evidence of a professional distinction and constitutes a professional honor" As a Fellow, David will contribute to the objectives of the American Bar Foundation which include: the study, improvement, and facilitation of the administration of justice and the rule of law; the promotion of the study of law and research thereon; the continuing education of lawyers and judges; the publication and distribution of addresses, reports, treatises, and other works on legal subjects; and the promotion of suitable standards of legal education. Upon receiving news of his selection, David stated: "I am especially honored to join the Fellows of the ABF and excited to support the Foundation’s efforts to advance the profession and promote access to justice in the communities in which we practice." David M Tang is the chair of Underberg & Kessler's Health Care practice group. You can learn more about David here and more about the American Bar Foundation here.

Nine attorneys from the law firm of Underberg & Kessler LLP have been named 2020 Upstate New York “Super Lawyers”, and two have been named 2020 Upstate New York “Rising Stars”. This group represents the top 5% of attorneys in Upstate New York, and is awarded to those attorneys who have attained a high degree of peer recognition and professional achievement. Mike Beyma, Jim Coniglio, Steve Gersz, Kate Karl, Paul Keneally, Tom Knab, Anna Lynch, Jennifer Shoemaker and Margaret Somerset were included in the 2020 “Super Lawyers” group under the following areas of law: Mike Beyma – Banking Jim Coniglio – Government Finance Steve Gersz – Businesses & Corporate Kate Karl – Banking Paul Keneally – Employment & Labor Tom Knab – Business Litigation Anna Lynch – Health Care Jennifer Shoemaker – Family Law Attorney Margaret Somerset – Medical Malpractice: Defense Leah Cintineo and Justin Alexander were included in the 2020 group of Upstate New York “Rising Stars” for Family Law and Real Estate Law, respectively. This group represents the top 2.5% of lawyers who are under 40 years old or who have been practicing for 10 years or less. The “Super Lawyers” list is produced annually, through a rigorous selection process of statewide nominations, peer review within the local legal community, and independent research of candidates. As always, if you have any questions, please contact us here or at 585-258-2800.

Underberg & Kessler LLP is proud to announce that fifteen of it's attorneys have been selected by their peers for inclusion in The Best Lawyers in America® 2021, and one attorney was named Rochester “Lawyer of the Year” in their area of practice. Mike Beyma, Jim Coniglio, Pat Cusato, Steve Gersz, Tim Johnson, Kate Karl, Tom Knab, Paul Keneally, Anna Lynch, Colin Ramsey, Ed Russell, Margaret Somerset, David Tang, George Van Nest and Helen Zamboni are included in the 2021 edition under the following areas of law: Mike Beyma – Banking and Finance Law, Bankruptcy and Creditor Debtor Rights/Insolvency and Reorganization Law Jim Coniglio – Municipal Law Pat Cusato – Real Estate Law Steve Gersz – Closely Held Companies and Family Businesses Law, Corporate Law Tim Johnson – Real Estate Law Kate Karl – Banking and Finance Law, Commercial Finance Law, Real Estate Law Paul Keneally – Commercial Litigation, Litigation – Labor & Employment Tom Knab – Litigation – Insurance, Litigation – Labor & Employment Anna Lynch – Corporate Law, Elder Law, Health Care Law Colin Ramsey – Litigation – Insurance Ed Russell – Banking and Finance Law, Corporate Law Margaret Somerset – Medical Malpractice Law – Defendants David Tang – Litigation – Health Care George Van Nest – Environmental Law Helen Zamboni – Real Estate Law Additionally, George Van Nest has been recognized by Best Lawyers® as a recipient of their “Lawyer of the Year” award, 2021 for his work in environmental law in Buffalo, NY. Best Lawyers® conducted its annual peer-review survey in where tens of thousands of attorneys cast millions of votes on the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed. They are included solely based on the results of the peer review. As always, if you have any questions, please contact us here or at 585-258-2800.

The statute discussed in the post below post was amended on August 3, 2020. For information on the amendments to the statute, see our new post from August 7, 2020: What Does New York’s Amended COVID–19 Immunity Law Mean For Providers? This new post was written by Steven R Gersz. To be clear, you need to read both the post below and our post of August 7, 2020 in order to understand the current state of the law. While all health care providers in New York are struggling to meet the needs of their patients, Governor Cuomo signed a new law that grants them immunity from most civil and criminal liability so they can focus on the job at hand. This new statute is much broader than Governor Cuomo’s Executive Order on March 23, 2020 that extended qualified immunity only to providers treating COVID-19 patients. [1] During the pandemic, resources within all health care facilities are really challenged. The Emergency or Disaster Treatment Protection Act [2] (“EDTPA”) recognizes that all patients must be treated as if they are COVID-19 positive until proven otherwise, putting an enormous strain on the whole system. There are not enough health care providers and they are all being asked to work long hours, under very difficult circumstances, reaching beyond their comfort levels with shortages of personal protective equipment (PPE), often. This law recognizes that medical professionals are doing their best under these difficult circumstances. It seeks to cut them some slack. It is designed to encourage health professionals to use their best judgement and to act in good faith and protects them from the missteps that inevitably flow from the lack of sleep, lack of resources and lack of good communications. The EDTPA extends immunity to nearly all health care facilities and nearly all health care professionals regardless of whether they are engaged in treating COVID-19 patients so long as they are involved, in some manner, in the response to the COVID-19 outbreak, and they act in good faith. The new law is intended to promote the public health, safety, and welfare of all New York citizens by allowing the health care professionals to expand their reach as much as possible. The law applies from March 7, 2020 until the end of the state of emergency.[3] What is the Scope of Immunity Under the EDTPA? The new law grants qualified immunity for both civil and criminal claims of harm if: The health care facility or professional (see list below) was arranging for or providing health care services pursuant to a COVID-19 emergency rule or as required by law, and The alleged negligence or omission occurs a. While arranging for health care services or treatments[4], or b. While deciding the response to be taken to the COVID-19 outbreak (per the state’s directives), and 3. The facility or professional is acting in good faith, and 4. The health care professional or facility did not act willfully, intentionally or in a manner that constitutes criminal misconduct, gross negligence[5], reckless misconduct or intentional infliction of harm. Who is Immune from Liability Under EDTPA? Any of the following health care professionals working in New York State during the state of emergency (regardless of whether they are employees, independent contractors, volunteers or agents of other providers or facilities): Physicians Physician Assistants Registered Special Assistants Pharmacists Nurses and Nurse Practitioners Midwives Psychologists Social Workers Mental Health Practitioners, including licensed mental health counselors, marriage and family counselors, creative arts therapists and psychoanalysts Respiratory therapists and respiratory therapy technicians Clinical Laboratory Technicians Nurse attendants or certified nursing aides, including those in certified training programs Certified Emergency Medical Technicians (EMT) Home Care Services Workers Health care workers providing services under the COVID-19 emergency rule (including providers who were brought out of retirement or who are licensed in other states and working in New York under the state of emergency), and Health Care Facility Administrators, Executives, Supervisors, Board Members, Trustees, and others responsible for directing and supervising or managing a health care facility or serving in any of those roles. What Facilities are Immune from Liability Under EDTPA? Any Article 28 facility including hospitals, nursing homes, public health centers, diagnostic centers, treatment centers, dental clinics, skilled nursing rehabilitation centers, residential health care facilities, maternity hospitals, midwifery birthing centers and residential psychiatric facilities, and Any Article 16 mental hygiene facilities including residential and outpatient facilities for the care of persons with developmental disabilities and family care homes, and Any Article 31 mental hygiene facilities including residential homes or institutions for the care, custody of treatment of the mentally disabled. How Does this Law Apply to You? If you are a health professional or you volunteer on the board of directors for a health care facility, you probably wonder if you could be liable for any of the adverse outcomes that many are experiencing. If you are afraid that you or your facility has made a mistake that resulted in harm to someone, there are three basic questions to ask yourself to help determine if this law might offer you immunity from liability: Are you among the listed professionals or volunteers listed above? Were you involved in either arranging for health care services during the state of emergency or deciding the response to be taken to the COVID-19 outbreak when the mistake happened? Did you act in good faith? If you can answer “yes” to each of these questions, then you are likely immune from civil and criminal liability under this law. The law is general enough that you do not have to be treating someone with COVID-19 to be immune from liability; you only need to be involved in the care of someone who presented during the emergency declaration. Examples and Models of Immunity There are some situations where it is easy to see how this law is likely to insulate providers and facilities from liability. Failures to isolate infected staff or mistakes in the use of PPE For example, a nurse who did not know that she had COVID-19 because she had no symptoms should not be liable for transmitting the virus where all indicators suggest that she was acting in good faith. Even if this nurse transmitted the virus to a resident because she forgot to raise her mask over her face when she rushed to his bedside to keep him from falling to the floor, she should not be liable. How about a nurse’s aide who forgets to remove her shoe coverings as she moves from an isolation unit to a non-COVID unit? It seems logical to apply immunity to these kinds of mistakes because the evidence suggests that the actors were not malicious or grossly negligent. Transmission of virus on hospital equipment What if the patient being treated does not have COVID-19? Imagine that a new patient in a hospital needs a ventilator and there is only one ventilator available. If the new patient develops COVID-19 from the ventilator and dies, is someone liable for their loss? This law should immunize the doctor who ordered the new patient onto the inadequately cleaned ventilator from claims of medical malpractice. In addition, the respiratory therapists, nurses and aides who were all involved in treating the new patient and who all failed to prevent the transmission of COVID-19 to the new patient should also be immune from liability so long as they all acted in good faith. What about the infection control team that cleaned the ventilator? The law is not specific to these professionals, but it stands to reason that the legislature meant to include these members of the team in the immunity. After all, they all work for the facility that was treating the patient who died during the state of emergency and the facility is immune. Completing state forms and reports Similarly, picture a supervising nurse in a nursing home who has to complete over a dozen 11-page reports, every day, that list all the contacts that every COVID-19 positive resident had with every staff member or other resident every time a new COVID-19 diagnosis is identified in the home. Let’s assume that in the fog of fatigue, she makes a mistake in one of her reports. She forgets to list one staff member whom she did not realize had contact with the new COVID-19 case. If this exposed staff member is not isolated and causes further spread of the virus to other residents, is the supervising nurse immune from civil or criminal prosecution? Under this law, the supervising nurse and the nursing home should both be immune from liability, so long as both were acting in good faith, without malice toward any individual. Most of these cases will be dismissed because the courts will apply this new immunity law to protect the health care providers from liability. But this does not mean that you cannot be sued. You can expect that after the epidemic has run its course, and the state of emergency has been lifted, we will see lots and lots of lawsuits. We already see advertising by the lawyers trolling for these cases. People will argue that their loved one died needlessly. People will claim that resources that are routinely made available to patients under normal circumstances were not offered to them. The role of recklessness, gross negligence, staffing shortages and resource limitations The hardest cases to manage will be those where the plaintiffs allege gross negligence. We can expect them to do this in almost every case. They will do so to prevent the dismissal of their cases, not because the allegations are true. They will argue that the risk of death from a failure to properly wear masks, or sanitize spaces or isolate patients, or to account for all the contacts of a COVID-19 patient elevates these failures to recklessness or gross negligence. For example, is it reckless if the Education Director does not have enough time to train all the staff on every shift how to properly use new masks before they are put into use throughout the facility? What if a nursing home does not have any cases of COVID-19, but a resident dies because of a delay in sending the resident to the hospital when there were not enough masks to protect the resident during transport? Is this delay gross negligence or is it excused by the new immunity statute? The statute specifically states that actions or decisions that result from shortages in staffing or resources will not be considered as either gross negligence or criminal/reckless misconduct. A great many mistakes are going to be associated, in some way, with staff and resource shortages. Medical professionals are doing much more than just their own job. Because of staffing shortages, people are covering larger numbers of patients for broader needs than we are used to seeing. Medical professionals are working longer hours and are not sleeping well in between shifts. The supplies of PPE are so erratic that everyone is trying to learn how to properly use different equipment every week. Naturally, people are going to experience memory lapses and unintended mistakes. Experts agree that most medical errors occur when the providers are fatigued, stretched beyond their comfort zones, or trying to process too much information at the same time. All these factors are present now. Yet, every failure to properly use PPE risks infection to other patients. Every failure to properly account for contacts with COVID-19 positive patients risks further transmission of the virus. Every transmission of the disease risks death for the infected. These are the kinds of questions that Courts may be asked to decide when considering the limits of the new April 2020 immunity law. The courts will have to struggle with the definitions of gross negligence vs ordinary negligence in the context of extreme conditions under which we asked our health care providers to keep working despite the daily toll that it is taking on themselves and their families. Key Takeaways: Notification, Communication, Documentation If you find yourself struggling to meet demands, here are a few things that you can do now to insulate yourself later. Notify your managers whenever you feel that you need more help. Communicate with team members regularly to help remind each other of protocol changes. Communicate in daily huddles among leadership to address supply and staffing shortages, policy changes and new education. Document the roll-out of new policies and procedures. Document or log the daily changes in PPE and personnel. Every shortfall experienced in staffing and all the scrambling to re-stock PPE or sanitization resources could be very valuable evidence to help defend the facility and the staff when claims start to pop up. All the challenges you are experiencing now will be difficult to remember when the fog of this emergency has lifted. To our readers who are not health providers, there is something else to think about. Epidemics have a way of repeating themselves. The viruses tend to be resilient and come back around. If we want our health care providers to be there for us the next time this happens, we must honor our promise to protect them this time around. If you have any questions, please contact us here or at 585-258-2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here. [1] UK Blog “Governor Cuomo Takes Action to Expand the Pool of Health Care Practitioners Amid COVID-19 Crisis” March 27, 2020 [2] New York State Public Health Law 28 NYCRR Section 3082, Enacted 4/3/2020 [3] The EDTPA applies retroactively to March 7, 2020, when the state of emergency was first declared (more than 2 weeks prior to Cuomo’s Executive Order 202.10) and remains in effect until the governor declares the end of the state of emergency. [4] The health care services mean those services that relate to (1) the diagnosis, prevention or treatment of COVID-19; or (2) the assessment or care of an individual with a confirmed or suspected diagnosis of COVID-19; or (3) the care of any individual who presents to a health care facility or professional during the period of the emergency declaration. [5] While writing this law the legislature was aware that almost every facility in the state is operating under extreme staffing limitations due to the spread of the virus among staff and the lack of available temporary staff. Consequently, staffing shortages cannot be the basis for asserting gross negligence.

This article was published in The Daily Record on July 21, 2020 - Download the Reprint Do the thing and you will have the power. – Ralph Waldo Emerson “Hope the internet is still on” I thought to myself as I force-closed the Skype app and then, with a quick prayer, re-tapped the link to the Skype call for the evidentiary hearing, from which I had just been dropped. I was in the middle of a direct examination of our main witness. Such is the plight of an otherwise prepared lawyer in the Summer of 2020. A day before, I had plugged-in, then packed an extra battery charger, tested my microphone, and set up a mini-tripod in order to keep my iPhone at eye level for the virtual hearing. But this was the first time I was inquiring into matters, while miles away from my witness, who, as far as I could tell, was logged-in while sitting in a cozy, well-lit corner of her kitchen. Thankfully, my witness was patient and well-prepared. And the Judge and opposing counsel seemed unphased about the 45-seconds that felt like an hour that it took me to get back into the hearing and complete the examination. A Series of Firsts This experience and being asked to navigate a number of other ‘firsts’ have been the norm in my practice, this year. Brené Brown has spoken about navigating the awkwardness of a tough “first time” – or as she calls it, the FFTs (‘effing first times’) – that inevitably present in new situations or in pandemic times. For me, the list of new situations includes advising clients on pending cases when Courts are closed and no motion practice is permitted, reviewing a stipulation to set ground rules for remote depositions (including no electronic communications until the conclusion), and successfully navigating an application to designate a commercial case as an “essential matter” during the COVID-19 Public Health Emergency as set forth in Administrative Order AO-78-20 during the period, when no new filings were then permitted, under the restrictions of the Governor’s earliest New York on Pause Executive Orders. Some Rules Still Apply Fortunately, a number of things remain unchanged: good briefing and better facts than the other side resulted in a favorable ruling on a motion for summary judgment of dismissal, after my first virtual special term argument. The experience was unusual in that two cases were returnable that morning but because the Court used a separate Skype link for each matter. I did not see or hear argument on the other case. Further, the regular routine of motion argument was missing: there was no walk to the Hall of Justice, no deputies at the security desk to acknowledge, no jostle for space in the elevator, no judge in a black robe, no exchange with colleagues in the hallway before or after special term. That morning, it was just me, my notes, a tripod, and 8-minutes of argument and questions, while staring at the camera lens of my iPhone. Also, despite the recent disruptions to personal and professional routines, many aspects of the practice of law are untouched, including: the basics of case law research, statutory deadlines, the power of persuasive writing, the reliability of e-filing, clients’ expectations for clarity and responsiveness, and my own and my law partners’ desire for a frictionless experience in the delivery of legal services. Also, unchanged is the opportunity to review habits and procedures and test new processes to improve the delivery of work product. For my most recent virtual hearing, instead of preparing a briefcase full of marked folders with four copies of each exhibit, I checked to be sure we had a complete set of PDFs in easily accessible format, so that the necessary document could be sent to the Court and counsel during the hearing or at break, which proved convenient. My new checklist for witness preparation includes a reminder to confirm the witness has prior experience with the remote conference technology or to test it, and also to remind the witness to be near reliable Wi-Fi at the appropriate time, and to keep their equipment charged or plugged in if she will be using a mobile device to login. Setting and Managing Expectations is Still Critical Before this year, I never had to inform a client that there was a prohibition on filing new state court actions. Our team navigated those kinds of conversations this Spring. I confirmed that my colleagues and I were monitoring the multiple executive orders and memoranda from the Administrative Law Judge to stay abreast of when the Pause-related restrictions were lifted. Setting new expectations while adjusting my own routines, which are impacted by school and gym closures and new rules for social interaction, remains a work in progress. I was pleased to successfully pitch new work via a Zoom conference. Although the virtual introduction to the client was different from the ‘before times’, the work after being engaged, fortunately, is still the same – gather and review the necessary client documents, outline a litigation strategy and get client authorization to proceed. Still, dealing with little changes in so many areas (remembering my mask when I leave the house, adjusting to the firm’s new clean-desk policy, refining the meet-in-the-grocery-parking-lot-for client-signatures/notarization technique, logging in daily to report no recent COVID-19 symptoms, navigating visitor restrictions at the office, respecting limitations on the number of people allowed in the elevator, etc) is mentally taxing. Even those, who have stayed safe and avoided contracting the virus, are at risk of COVID-related brain fog. Articles in Forbes and the Huffington Post have described “allostatic load” as the accumulated physiological burden from stress and frequent secretion of stress hormone and a normal reaction, when individuals are unable to do activities they are accustomed to and are missing out on stimulation that keeps the brain engaged and active. Although it was somewhat normalizing to know that I am not alone, in dealing with pandemic related brain fog, it still did not alleviate the symptoms of constant, continued disruption. In short, it is generally exhausting to be in public health emergency survival mode for four-plus months. To set up better outcomes and ensure I am as well-equipped for the work week, I am enjoying the benefits of some, regular exercise, and incorporating, with some success, an evening winddown routine that includes unplugging from devices after hours. I also recently decided that regardless of whether we were looking for a challenge, those who are called to advise and represent clients in pandemic times have the opportunity to learn to build new habits, to adjust faster, to improve and enjoy the practice of law more than ever. To quote Marie Forleo, “Everything is figureoutable.” If you have any questions, please contact us here or at 585-258-2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

Last week, the President signed several executive memoranda related to the economic conditions caused by the COVID-19 pandemic. Among them was a memorandum that defers the due date of the employee portion of federal payroll taxes. Employers can defer payment of that employee portion for workers that earn less than $4,000 on a biweekly basis. The Department of Treasury is expected to issue guidance to employers on how to handle this tax deferral as many details of its implementation are unclear. Currently, an employer is not required to delay the relevant tax payments, but may do so if it chooses. Importantly, this memorandum does not relieve employees of the tax liability. It only defers it. If an employer does choose to stop deducting the employee’s portion of the taxes for the remainder of the year, it may just mean that the employee is left with a large tax bill at tax time. Trump did mention the possibility of the of the tax being forgiven if re-elected, however this would require an act of Congress and employers should not expect this to happen. One potential option is for employers to continue deducting the taxes but hold the amounts in escrow. The withholdings could then be returned to the employee should the tax liability be forgiven by Congress. Another option for employers would be to continue to have their employees pay the tax and have the Federal government refund any overpayed taxes to their employees at tax-time. Again though, it is important to see the Department of Treasury’s guidance to ensure that course of action will not run afoul of the law. Adding to the uncertainty is the fact that there are questions about the constitutionality of the policy itself. Employers should continue to monitor developments on this tax deferment to ensure they are complying with the law. If you have any questions, please contact Alina Nadir here or at 585-258-2805. You can view more COVID-19-related posts in our COVID-19 Resource Area here .

On August 10, 2020, the Small Business Administration (“SBA”) opened its Paycheck Protection Program (“PPP”) loan forgiveness portal to lenders. However, many businesses will have to wait several more weeks or months for their much anticipated loan forgiveness because many lenders do not yet plan to begin processing forgiveness applications. The postponement of forgiveness application processing is because of the possibility for changes in SBA guidance and additional legislation, including possible legislation providing for automatic forgiveness for small loans (under $150,000) and an easier process for mid-size loans (under $2 million). As recently as August 4, 2020, the SBA published FAQs which address loan forgiveness questions from borrowers and lenders. The FAQs addresses general questions, such as which applications sole proprietors and self-employed individuals are to use, as well as specific questions relating to the various calculations required to be made in determining the forgiveness amount or the reduction thereof. Any additional guidance with respect to submitting applications and step-by-step instructions for submissions will be published in the portal. The portal is available only to PPP lenders, who will be responsible for notifying borrowers of any SBA inquiries, rejections, or forgiven amounts. Lenders will use the portal to submit loan forgiveness decisions, supporting documentation and requests for forgiveness payments. The portal will also be the means for lenders and SBA communications, such as responding to SBA inquiries. The portal will also permit lenders to track the status of the forgiveness request. Although many businesses are eager to have their loans forgiven, the longer lenders wait, the less surprises both lenders and borrowers will face in the loan forgiveness process. The FAQs can be accessed here. If you have any questions, please contact Sarah F. Bothma here or at 585-258-2879.

In our post of April 23, 2020, we summarized the New York Emergency Or Disaster Treatment Protection Act (“EDTPA“). When originally signed into law, the Act extended broad immunity to nearly all healthcare facilities and healthcare professionals in all aspects of the care and treatment of patients from March 7, 2020 during the pendency of the COVID-19 state of emergency. On August 3, 2020, Governor Cuomo signed a new law amending the EDTPA which narrows the scope of the immunity provided by the original statute. The original EDTPA granted nearly all healthcare providers qualified immunity while providing healthcare services during the COVID-19 pandemic. Now, under the amended EDTPA, the immunity is limited to those healthcare facilities and providers who are assessing or caring for individuals with suspected or confirmed cases of COVID-19. Legislative sponsors of the amendments acknowledge that in the early days of the crisis, all healthcare facilities and healthcare providers needed broad immunity to deal with the unprecedented challenges they faced. Now, that the immediate crisis seems to have passed, the balance tips back in favor of patients and the grieving family members of patients who succumbed to medical conditions other than COVID-19 during the pandemic. In addition to narrowing the scope of providers who retain immunity, the new law also eliminates immunity for those involved in “prevention” services, clarifying that the scope relates only to “assessment or care of an individual as it relates to COVID-19” and eliminates the prior broad inclusion of “any other individual who presents for health care services” during the pendency of the pandemic. In addition, the new law removes any statutory immunity for “arranging for healthcare services” and clarifies that immunity is only available when care is rendered “in accordance with applicable law or pursuant to a COVID-19 emergency rule”. As amended, the EDTPA only provides immunity to healthcare facilities and healthcare providers that provide assessment or care for an individual with a suspected or actual case of COVID-19, when that care is delivered in a manner consistent with applicable law or with an applicable COVID-19 emergency rule. As such we suggest you look back at our original post to understand more about the EDTPA immunity, but, as you review the prior post, be mindful of the limitations to the scope of immunity described above. What does this mean for providers? First, the new law is not retroactive, so all those who were immune from liability between March 7, 2020 and August 3, 2020 remain immune. Going forward, however, only those who are actually caring for confirmed or suspected COVID-19 patients continue to have qualified immunity from liability. Administrators, and board members and other staff members are no longer immune under the amended law. From and after August 3, 2020, no provider is immune from liability for treatment of other diseases, such as the failed treatment of a cancer patient if that cancer patient did not have a confirmed case of COVID-19 or was not being assessed for COVID-19 when the patient died. Healthcare facilities and providers will recognize that the immunity for suspected and actual cases of COVID -19 is warranted because the standards of care on diagnosis and treatment of COVID-19 is continuing to evolve, and no “gold standard” of testing or treatment plan has yet emerged. As such, it would be unfair for current providers to be liable for delays or false negatives in lab tests or for the selection of treatment protocols. For patients in an institutional setting, best practice involves isolating those patients with confirmed cases of COVID-19, which can create delays in responding to emergent situations, such as breathing difficulties or cardiac issues, while the responding providers don appropriate protective equipment. It appears these circumstances are the legislative justifications for the continued immunity. In addition to Steven R. Gersz, this post was authored with input by David M. Tang and Margaret E. Somerset. If you have any questions, please contact David M. Tang here or at 585-258-2845. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

Earlier this month, we wrote about Governor Cuomo’s executive order requiring those who have spent more than 24 hours in a COVID-19 hot-spot or restricted state must quarantine for 14 days after traveling to New York. Yesterday, Governor Cuomo announced that four additional states meet the metrics to qualify for the travel advisory. Newly added are Minnesota, New Mexico, Ohio and Wisconsin. Of note, Delaware has been removed. The quarantine applies to any person arriving in New York from a state with a positive test rate higher than 10 per 100,000 residents over a 7 day rolling average, or a state with a 10% or higher positivity rate over a 7-day rolling average. Cuomo also announced that a travel enforcement operation has begun at airports across the state to help ensure travelers are following the state’s quarantine requirements. Currently on the list are the following states: Alabama Arkansas Arizona California Florida Georgia Iowa Idaho Kansas Louisiana Minnesota Mississippi North Carolina New Mexico Nevada Ohio Oklahoma South Carolina Tennessee Texas Utah Wisconsin The restrictions do not apply to any individual passing through the designated states for a limited duration (less than 24 hours) through the course of travel. Examples of this include stopping at rest stops for vehicles, buses, and/or trains; or layovers for air travel, bus travel or train travel. As discussed in our earlier post, essential workers who live and work in New York State are exempt from the travel advisory. However, essential workers traveling to New York State are subject to certain restrictions depending on the length of their stay. Employees traveling to New York for a period of 36 hours but requiring an overnight stay should monitor temperature and symptoms, wear face coverings in public, maintain social distance and clean and disinfect work places. They are required, to the extent possible, to avoid extended periods in public, contact with strangers and large gatherings. For those workers traveling to New York State for a period of less than 12 hours, they should comply with the foregoing and stay in their vehicle or limit personal exposure by avoiding public spaces as much as possible. Essential workers traveling to New York State for a period of longer than 36 hours requiring them to stay for several days should seek diagnostic testing as soon as possible upon arrival to ensure they are not positive for COVID-19, should monitor temperature and signs of symptoms, wear a face covering in public, maintain social distancing, clean and disinfect workspaces for a minimum of 14 days, and avoid extended periods in public, contact with strangers, and large gatherings for a period of, at least, 7 days. If you have any questions, please contact us here or at 585-258-2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

This article was published in The Daily Record on June 25, 2020 - Download the Reprint Although we regularly report on legal and regulatory developments in this column, the COVID-19 pandemic and NYS On PAUSE lead to some interesting positive developments regarding the use and enjoyment of the State’s vast recreational opportunities. As NYS ramped up to the COVID-19 shutdowns during the second week of March 2020, the calendar had a number of outdoor opportunities available for residents seeking a safe, albeit socially distanced, recreation in the outdoors. Unfortunately, while there have not been many bright spots for business, families, schools and sports over the last several months, NYS Department of Environmental Conservation (DEC) has encouraged residents to take advantage of outdoor opportunities. The agency deserves significant credit for encouraging responsible outdoor recreation in a variety of contexts. The spring time in New York includes a number of key dates for fisherman and hunters. Notably, trout season opens on April 1 across the State and spring turkey season opens on May 1. In order to hunt small or big game in New York, hunters are required to take a hunter safety course prior to purchasing a license. The hunter safety courses are typically taught at a variety of in person locations around the State. With the COVID shutdown, DEC permitted new hunters to take the hunter safety course on-line. Based on DEC’s statistics over 24,000 new hunters successfully completed the on-line course, an increase of 20 percent over a similar period. DEC has been trying in recent years to reach new, first-time and female hunters. 40 percent of those who completed the on-line course were females, over a 13 percent increase from typical courses. In addition, about half of the on-line course attendants were over the age of 30, compared to a mere 30 percent for in person courses. Based on DEC’s flexible certification process and the public’s COVID imposed free-time, the agency saw a large increase in hunters during the spring turkey season. In particular, DEC has indicated that resident turkey permit sales increased by 49 percent this spring. Similarly, making on-line courses available lead to a 60 percent increase in junior hunting licenses. Overall, hunting license sales during the spring pandemic increased by 130 percent. Based on the success of the on-line hunter safety course, DEC has just announced that it will extend the on-line course through August 31, 2020 and make the bowhunter education available on-line in mid July. Since license sales support DEC’s programs and conservation projects, the significant jump in licenses sales has the potential to add new participants while simultaneously ensuring a strong funding source for DEC’s conservation efforts across the State. Fishing also experienced a significant jump in participation over the last few months. DEC indicated that there was an increase of 30 percent in annual and one-day fishing licenses from last year. The trout opener on April 1 saw a boom in participation with many streams across the State seeing increases in fisherman of all ages. The amount of individual and private fishing activity has been quite robust with many sporting goods stores short on supplies. However, the charter and sport fishing business in New York experienced a very difficult spring season due to the NY PAUSE restrictions on business operations. As the State re-opens, Lake Ontario and Erie charter operations are just starting to operate after weeks of cancelled charters during spring salmon and trout season. Although DEC regularly holds several Free Fishing Days each year, this weekend marks the second this year running from June 27 to 28. During these events DEC waives the resident and non-resident fishing license requirement to encourage participation. DEC Commissioner Basil Seggos said that “[a]mid the uncertainty of these challenging times, being home together has allowed many families to get outdoors and experience new activities. Free fishing days provide the perfect opportunity for all New Yorkers from Brooklyn to Buffalo and from Montauk to Mt.Marcy to try fishing for the first time and encourage those who have fished before to dust off their fishing rods and get outside.” In the process, DEC has encouraged anglers to maintain safe social distancing while fishing and protocols, including reference to staying six feet or a fishing rod length apart, while fishing from boats. Similarly, throughout the spring DEC has encouraged residents to enjoy the Adirondacks, hiking and the outdoors in responsible ways. While DEC encouraged use of the trails in the High Peaks region to enjoy the natural resources and outdoors, it also suggested that hikers and visitors apply safe protocols during the COVID era. Prior to Memorial Day DEC suggested that hikers in the High Peaks regions find alternative trail systems to explore if the desired trail was crowded. One of the more popular past times in NYS that also was subject to PAUSE restrictions on gatherings and activities has been camping at State parks and campgrounds. NYS campgrounds finally opened on June 22 to those with existing reservations. NYS on-line camping reservation system was also modified by lifting the normal 9 month reservation restriction period and allowing transfers of camping reservations from this year into 2021. Another interesting step taken by DEC is the creation of a virtual Adventure NY on its website to share weekly content about various outdoor pursuits.While DEC has a full plate under normal conditions issuing permits for industry and commercial activities such as air, water discharge, wetland and tank permits, the agency appears to have been supportive of residents’ desire to enjoy outdoor hobbies and places since the COVID pandemic hit in mid March.Based on the significant jump in license sales and participation, hopefully DEC will continue to provide flexible platforms in future years to enhance and increase enjoyment of NY’s natural resources. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800. You can view more COVID-19-related posts in our COVID-19 Resource Area here .