The Coronavirus and the resulting social distancing and self-quarantining it has caused have forced most New Yorker's to quickly reevaluate their health, child, and financial situations, which in turn has caused growing anxiety, fear, and concern. During times such as these, it is natural for people to realize just how fragile life really is. In these unique and unprecedented times, as each day brings more quarantines and in some unfortunate circumstances more closures, the need for estate planning becomes increasingly real and necessary. At a minimum every adult needs a Last Will and Testament, Financial Power of Attorney, and Health Care Proxy / Living Will. The Last Will and Testament is a document that comes into effect at an individual's date of death and directs the disposition of an individual's assets as well as the guardianship of his/her minor children. In many cases, a trustee will also be appointed under one’s Will to manage the inheritance of a minor child. In the event an individual dies without a Last Will and Testament, New York State's laws of intestacy dictate who will receive a decedent's assets, which may be drastically different from what a decedent truly intended. Further, a judge will ultimately determine who retains custody of a decedent's minor children. A Financial Power of Attorney is a document that applies during an individual's lifetime which authorizes an agent to stand in the individual's place with respect to financial matters in the event the individual is unable to act on his/her own accord. Such activities include filing taxes, banking, purchasing and selling real estate, and filing for governmental benefits. A Health Care Proxy/ Living Will is a document that applies during an individual's lifetime which is used when an individual is unable to make medical decisions for himself/herself. Thus, it is imperative to individuals that their wishes are known to their appointed agent(s) in the event they cannot speak for themselves. Other estate planning concerns that every individual should be aware of include checking beneficiary designations on retirement accounts and life insurance policies, possibly purchasing life insurance, and speaking with elderly family members about their own estate planning needs and goals. During the Coronavirus, the attorneys at Underberg & Kessler LLP have the ability to “meet” with clients telephonically or by video conference via the internet. In this regard, video and/or telephonic conference calls are an excellent mechanisms for discussing an individual's current estate planning documents, drafting and reviewing an individual's updated estate planning documents, and finally for arranging in-person appointments to execute documents since the law in New York holds that an individual's estate planning document must be signed in person before a notary public and two witnesses. The lawyers at Underberg & Kessler LLP are available to assist any and all individuals with their estate planning needs. Click here to contact us if you have any questions. You can view more COVID-19-related posts in our COVID-19 Resource Area here.

The concerns surrounding coronavirus (COVID-19) continue to rise, not only world-wide but right in the communities where we live and work. At Underberg & Kessler, we want to assure you that the health and safety of our clients and employees remain our top priority. We are following the guidance from the Centers for Disease Control and Prevention and our local and state health departments in order to safeguard everyone’s well-being. We understand in difficult times, having access to legal services is critical. Underberg & Kessler has plans in place to maintain continuous operations in order to service our clients. All of our attorneys are fully equipped to employ a wide variety of effective and convenient ways to work remotely with our clients and to follow best practices. We encourage our clients to do the same, so that, together, we can fulfill to the utmost the specific social responsibilities called for during this time. U&K has the tools and resources necessary to arrange virtual meetings by phone, video conference or other means. We are committed to continue to serve our clients at the highest level of excellence. As we have been a trusted advisor to our clients for nearly a century, we welcome the opportunity to discuss any challenges you or your business are experiencing due to COVID-19. You can contact our Managing Partner Anna Lynch here or by phone at (585)-258-2823. At Underberg & Kessler we are confident in our ability to provide uninterrupted legal services, while ensuring the well-being of clients and employees. You can view our COVID-19 Resource Area here.

Question: I have been practicing medicine for 15 years. Lately, I’ve hit a streak of difficult challenges – more than before. I am constantly buried in paperwork and I caught myself making a mistake probably due to overwhelm. I am also navigating various issues in the office after an unexpected death of a patient and loss of a key staff member. Do you have any suggestions for riding this out? Answer: Murphy tells us that things go wrong in life. Likewise, errors are inherent in the practice of law and in medicine simply due to humans being imperfect by nature. In my practice, there are times when I’m challenged to deliver ‘bad news’ to a client -- sometimes the facts of the case mean our client will face exposure or liability; in other cases, a recovery due to injury is just not possible due to circumstances beyond our client’s control. With time, I’ve adapted a few methods for dealing with complications or difficult situations. This article considers a few ideas for how to respond for dealing with overwhelm and things that go wrong -- at work or at home. We Can Only Control What We Can Control The Greek Stoic philosopher, Epictetus, taught that some things are in our control and others are not. Things in our control are opinion, pursuit, desire, aversion and, in short, whatever are our own actions. On the other hand, things not in our control are body, property, reputation, command, that is, whatever are not our own actions. In dealing with a difficult situation, assess that which is capable of being influenced or effected by your own actions. It may relate to communicating information, making a recommendation, or pausing and reflecting on making a measured response in lieu of reacting to an insult. In the context of helping staff members or a friend through a difficult moment, you can control your own actions and the timing of the actions, which may take the form of listening, counseling, or offering a shoulder to lean on. Managing Expectations Some years ago, I read an article by surgeon and writer Atul Gawande in The New Yorker on the question of what should medicine do when it can’t save your life. In that, he reflected on an observation from the paleontologist and writer Stephen Jay Gould. Gould was diagnosed with abdominal mesothelioma in the 1980s; he went to the medical library to review the latest literature and confirmed that science had concluded that the disease is incurable, with the median survival being only 8 months from discovery. Gould, however, studied patient survival curves and he noticed that patients were not clustered near the median survival but fanned in both directions and, notably, the curve was skewed to the right. It was in this long, though slender tail, in which Gould found solace. An experimental therapy that he received allowed Gould to live another twenty years. Also mentioned in The New Yorker article was a Harvard Medical study that asked doctors for 500 terminally ill patients how long they thought their patients would survive and then followed the patients. Only 17 percent of the doctors underestimated. A fascinating data point from that research was that the better a doctor knew their patient, the more likely they were to err. The suggested takeaway was that in addition to having a natural tendency to avoid difficult conversations, our own views may be unrealistic regarding likely outcomes versus desired outcomes. If you are struggling with issues in the office, try to be open about the practice’s needs and any new expectations from clinical staff, so everyone can see that the goals are realistic and achievable. Make Time for Communication In my work, communication goes a long way to help me understand a client’s objective and based on that understanding, my colleagues and I will work to craft a solution that best fits the stated goals. Gawande wrote a powerful anecdote of the transformative of a policy to systematize an end of life discussion for residents of a township in Wisconsin. Anyone admitted to a hospital, nursing home or assisted living facility completed a 4-question survey. The community increased advance directives from 15% to 85% in 5 years. Having the conversation resulted in end of life cost in that township that are half the national average. Good listening is a critical part of effective communication. When we deal with difficult patients or people, can we identify their objective? Are they coming from a place of fear or anxiety? If so, can we move them to a place a safety to mitigate or lessen the anxiety so that space can be made for information sharing and/or a productive discussion of goals? Ask for Help If the situation calls for it, give yourself permission to seek help and find a trusted confidante or friend or a grief counselor or another professional with whom you can discuss your situation and identify options to better handle emotions or the emotionally-laden information that you are processing. In his article, Gawande shared details of his experience when shadowing a hospice care colleague to get a frontline view of her approach to help patients “have the fullest possible lives” in their final weeks or months. He shared his mindset shift from believing hospice care hastened death, because patients forgo treatment and are permitted high dose narcotics. Rather, he found and cited research showing no difference in survival time between hospice and non-hospice patients with breast, colon and prostate cancer. In some cases, hospice care seemed to extend survival (those with pancreatic or lung cancer gained 3 to 6 weeks, those with congestive heart failure gained 3 months). Maintain Good Health When dealing with a challenging situation in the office or at home, take time to do a mini audit on your self-care regimen. Whether it is yoga, laps in the pool, walking the dog or taking a mindful moment every morning, create time for preserving and enhancing your physical, mental and spiritual well-being. Steven Covey, author of Seven Habits of Highly Effective People wrote, “We must never become too busy sawing to take time to sharpen the saw.” A few years ago, my friend, Ron Friedman, wrote a great article for Harvard Business Review called, Regular Exercise is Part of Your Job. The article explains that social scientists who researched the impacts of exercise determined that the benefits go beyond a healthier heart, better physique and lower blood pressure. What caught my attention was that the evidence suggests exercise improves how one thinks: sharper memory, prolonged mental stamina, and enhanced creativity. Ron wrote about a study of 200 employees which found that on the days when employees exercised, their work experience changed: the employees reported being more productive, having smoother interactions with colleagues and enhanced mood. To the extent that dealing with a difficult situation with a colleague or a friend or a difficult patient is challenging on its face, increase the odds that you will face the challenge in a focused, mentally clear manner by keeping up good health habits. More Empathy, Less Sympathy Empathy is feeling with people. Sympathy, in contrast, is feeling sorry for someone (a patient, colleague or friend) by keeping a distance from the other person’s feeling. According to Brené Brown, the research professor who gave a viral TED talk, empathy fuels connection; sympathy drives disconnection. Brown writes and has spoken eloquently about the challenge of empathy: she points out that empathy is a choice -- a vulnerable choice, because it calls for us to connect with something within ourselves that connects with the emotion that the other person is feeling. Brown notes that in the face of a difficult situation, it is a natural instinct to want to try to make something better. However, she challenges us to recognize the truth that rarely can a ‘response’ alone make something better. What makes something better is connection. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Legislators have for many years sought to strengthen state and federal laws in order to prevent employers from engaging in gender discrimination as to pay (or punish them if they do). On the federal side, the 1963 Equal Pay Act generally bars employers from paying men and women different amounts for the same work. However, that law also has several exceptions, allowing employers to avoid liability for pay discrepancies between men and women if the discrepancy is based on a non-discriminatory “factor other than sex”, such as seniority, merit, or quantity or quality of work. One frequent defense to pay equity claims has been that the pay gap stemmed from the workers’ past salaries. More than thirty years ago, the Seventh Circuit federal appellate court held that salary history is a legitimate defense to a pay equity claim, as it found that employers’ consideration of salary history is a “factor other than sex”. Other federal appellate circuits have agreed if other non-sex factors are also considered, such as skills, experience etc. Over the thirty years since the Seventh Circuit decision, advocates have argued continuously that allowing salary history as a defense to Equal Pay Act claims perpetuates salary inequity for women, and some courts and legislators have agreed. One such court, the Ninth Circuit federal appellate court, just issued a ruling on Thursday, February 27, 2020, finding that pay gaps for Fresno County,California, female teachers cannot be excused by reliance on a policy of paying incoming teachers a set premium above their past salaries. This decision adds to the split between the federal circuits on the salary history defense under the Equal Pay Act, which means it is possible the United States Supreme Court may at some point choose to step in and resolve the issue. Many commentators believe the attention on the split will remain high and increase the odds of the Supreme Court taking up the issue, with some opining that the more conservative members of the Court may side with the Seventh Circuit and find that Congress should determine whether salary history is a valid defense. The Ninth Circuit reasoning focused on its view that salary history is not job-related, unlike the listed Equal Pay Act exceptions of seniority, merit or quality or quantity of work, and thus allowing salary history as a defense would defeat the remedial purpose of the Act. Indeed, in a separate 1972 case, the Supreme Court has found that Congress intended the Equal Pay Act to be “broadly remedial”, and the Ninth Circuit also cited that case to support its decision. Partly in response to the federal uncertainty as to gender pay equity, many states, including New York, have made changes to their own discrimination law to address the issue. Indeed, specifically as to salary history, as of January 6, 2020, New York employers are prohibited by state law from asking for previous pay history from applicants. In addition, as of October 8, 2019, pay differentials between men and women employed in New York are prohibited for “substantially similar” work, as opposed to only exactly equal work as in federal law. This addresses the perceived problem of employers making non-material distinctions between the work done by men and women in order to justify intentional or unintentional pay inequity. The solution to federal and state pay equity law prohibitions, as is often the case in employment law, is securing competent employment law advice from counsel, in conjunction with frequent self-audits of the employer’s pay practices and the rationale for any pay inequity. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Steven A. Porter, M.D., P.C. (the “Practice”) is required to pay $100,000 and comply with a two year corrective action plan pursuant to a settlement agreement with the U.S. Department of Health and Human Services (“HHS”), and the Office for Civil Rights (“OCR”) for HIPAA violations. The OCR investigated the Practice’s HIPAA compliance after the Practice filed a breach notification with HHS on November 21, 2013, claiming that a business associate of the Practice’s electronic health record (“EHR”) company was holding its patient records hostage until the Practice paid it $50,000, in violation of HIPAA. The complaint against this third-party led to an investigation of the Practice’s own violation of the HIPAA privacy and security rule. The OCR determined that the Practice: Failed to conduct an accurate and thorough risk analysis of potential risks and vulnerabilities to the confidentiality, integrity, and availability of all its electronic protected health information (“ePHI”), Failed to implement security measures sufficient to reduce risks and vulnerabilities to a reasonable and appropriate level, and Permitted the EHR company to create, receive, maintain or transmit ePHI on the Practices behalf without obtaining satisfactory assurances that the EHR company would appropriately safeguard the ePHI, since at least 2013. In addition to the settlement payment, the Practice is required to comply with the two year corrective action plan from the OCR, which requires the Practice take several corrective steps and undergo monitoring of its compliance for the two year period. In addition to conducting risk assessments and adopting a risk management plan, the Practice is required to create a security management process; adopt a form business associate agreement (“BAA”); create procedures for negotiating and implementing BAAs; develop a method for assessing current and future business relationships; revise policies and procedures to ensure its workforce understand permissible and impermissible uses of PHI; train its workforce with respect to disclosing PHI to business associates and use of their applications; and regularly submit reports of each of the foregoing to the OCR. The cost of compliance plus the $100,000 settlement payment are, however, a fraction of the potential penalties for which a healthcare provider could be liable for in this case. Important takeaways for your practice are to make sure that you: Have a risk management plan in place Plan and monitor compliance Have in place BAA’s with service providers, as appropriate Train your staff on the protection and permitted uses of PHI As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On January 31, 2020, the US government released an updated I-9 form. While employers are permitted to use the previous version until April 30, 2020, it’s a good idea to start using the new form now. The new form includes some revisions to the previous version. Among the changes are clarifications as to who can act as an employer’s authorized representative and an update to the Department of Homeland Security’s privacy notice. Employers should be aware that failure to properly complete and retain the I-9 form for its employees could result in civil penalties or even criminal prosecution. The Department of Homeland Security has been increasing its compliance enforcement on employers. The compliance enforcement methods include random audits to ensure employers are properly completing I-9 forms. The new form can be found here - https://www.uscis.gov/i-9 As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Watch below as Kate Karl, Partner at Underberg & Kessler LLP describes the Firm's Casual For A Cause program and this month's beneficiary: Rochester Area Interfaith Hospitality Network (RAIHN). As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Similar to the last several years, Governor Cuomo’s 2021 budget proposal includes several employment law proposals that would place additional burdens on New York employers. First, a sick leave requirement would require that employers provide employees with paid sick leave (except for employers of 4 or fewer employees, who would be required to provide unpaid sick leave). The budget identifies the Commissioner of the New York State DOL to adopt regulations and issue guidance on the sick leave provision. If passed, the law would take effect one year after enactment. Additionally, the proposed budget includes a provision that would increase sexual harassment claims disclosure for State contractors beginning on July 1, 2020. Included in the disclosure requirements are the number of adverse judgments or administrative rulings arising from sexual harassment claims from the previous year, the total number of settlements during the preceding year for conduct that allegedly happened in the workplace, and the total number of settlements for the preceding year that relate to allegations of sexual harassment committed by a corporate executive without regard to whether the conduct occurred in the workplace of the bidder. The foregoing would also require the bidder to share this information with the Division of Human Rights. Finally, the budget proposes the creation of a digital marketplace worker classification task force. The task force would submit a report to State officials with a recommended standard for worker classification on or before May 1. The budget would also authorize the DOL to promulgate regulations to determine appropriate classifications. Keep an eye on this blog, as we will update you with the status of these budget proposals. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In a move that many employer groups had lobbied for, the United States Department of Labor (“DOL”) issued a new final rule in January 2020 (effective March 16, 2020) limiting the definition of joint employer under the Fair Labor Standards Act (“FLSA”). This new rule thereby provides clarity to all businesses, including those involved in franchising and who use contracting companies. The new rule focuses on four factors: • The Hiring & Firing of Employees • The Supervision & Control of Employees’ Work Schedules or Conditions of Employment to a Substantial Degree • The Determination of Employees’ Rate of Pay and Method of Payment • The Maintenance of Employment Records Crucially, it is the exercise of the above rights, rather than just the authority to do so, that controls, making it far less likely for joint employment to exist. A previous factor that joint employment existed where an employee was “economically dependent” on a given company no longer applies. The DOL specifically stated that this change was meant to encourage franchisors and contracting companies to provide guidance, training, form policies, facilities, apprenticeship programs and even association health or retirement plans without worrying about being deemed a joint employer. Employers are advised to consult with experienced employment counsel in looking at their company relationships for possible joint employment. Also, this rule applies for now on FLSA wage and hour issues, not to state law or other federal statutes (although the National Labor Relations Board and the Equal Employment Opportunity Commission are expected to issue similar rules shortly). As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

This question and answer was printed in the Monroe County Medical Society November-December 2019 Bulletin. New York’s Red Flag gun safety law became effective August 24, 2019. The law establishes a new procedure that allows a concerned family and household member, school official or law enforcement officer – but not physicians or other licensed clinicians – to obtain a court order, also known as Extreme Risk Protection Order, to remove and keep guns away from individuals who pose a serious risk of harm to themselves or others. This court order specifically prohibits the individual from purchasing or possessing a firearm, rifle or shotgun while the order is in effect. Firearm safety is considered a public health issue. New York law does not preclude physicians from talking to patients about firearm ownership and safety. In fact, because patients trust their physicians to advise them on issues that affect their health, physicians play an important role in intervening with patients who risk injuring themselves or others with firearms. Through patient encounters, physicians have an opportunity to educate about safe storage of firearms, household risk factors, and minor’s access to firearms, and how to mitigate those risks. When confronted with a parent who is concerned that a minor, or loved one, is at risk of violence, suicide, or injury by firearm a physician can discuss firearm safety, including safe storage. Counseling efforts by physicians have been shown to have a significant positive effect on the firearm storage habits of their patients. Depending on the facts and circumstances, a physician may recommend counseling or mental health treatment. Lastly, physicians can refer parents to Red Flag gun law safety information. The New York State Unified Court System’s website includes the information and forms necessary to apply for an Extreme Risk Protection Order (https://ww2.nycourts.gov/erpo). There are a variety of clinical scenarios that may arise in discussing firearms with patients. Conversations with physicians are important, especially with high-risk patients. For additional information regarding firearm safety, including patient privacy implications and reporting obligations, contact your attorney. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In August, we described the highlights of New York’s expanded harassment laws. The law changing the standard for legally actionable harassment in New York. It changed from conduct that is severe and/or pervasive to conduct that rises above the level of “petty slights and trivial inconveniences” is now in effect in all New York workplaces. Remember, while New York State has put an emphasis on curbing sexual harassment in the workplace, this lowered standard applies to all types of harassment based on a protected category. The lowered standard means it is more important than ever that every New York employer ensure its sexual harassment and general anti-harassment policies are up to date and compliant with the law. An established investigation procedure must be in place to ensure that no complaints fall through the cracks and that every good faith complaint, even if it appears trivial, is taken seriously and investigated. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Effective February 10, 2020, the ten members with the largest percentage ownership interest of an out of state LLC can be held personally liable for violations of New York’s wage and hour laws. Previously, only domestic LLC shareholders were subject to individual liability for unpaid wages. The ten members with the largest percentage ownership interest, are calculated based on the percentage of ownership of each member during the time period the violations occurred. Employees must first obtain a judgment against the LLC that is unsatisfied and must provide the members written notice of the intention to hold them personally liable. Employers should review their pay practices to ensure compliance with New York State law when doing business in New York. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.