Employment & Business Litigation Pointers - Volume II, No. 3

As a public service, we are pleased to present this issue of Employment & Business Litigation Pointers, which aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
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A Note from Joseph S. Brown, Esq.

Since the time that I drafted my article entitled “COVID-19 Vaccination Updates from the EEOC and New York State: Five FAQs”, we now have a federal court decision upholding an employer’s mandatory vaccination policy. A federal judge tossed a suit by Texas medical workers challenging their hospital's COVID-19 vaccine mandate. In an easy-to-read 5-page opinion, Judge Hughes succinctly dismisses the plaintiffs' arguments from the "press-release style" of a complaint.
 
While we must remain vigilant given a recent surge in Delta variant cases of the coronavirus, the Labor & Employment team has been enjoying the summer and doing more things in the office, such as getting to know our group of talented summer law clerks, who you can read about here.  We are pleased to welcome Cristian Cruzado, Deborah Amponsah, Evan Gestwick, and Richelle Kloch to the firm! And in news that no one cares about except me, it was great attending an in-person meeting at a client’s office and discovering that my summer suit last worn in 2019 still fits!
 
This month’s edition of Employment & Business Litigation Pointers includes my recent article on President Biden’s Executive Order proposing regulation of non-compete agreements and what that means for New York employers.  My colleague Katie Wood provides an update on New York’s HERO Act following the state’s release of model airborne infections disease prevention plans.  Speaking of which, please join us on Monday, July 26th at 12pm as we review the HERO Act as part of the Better Business Bureau Webinar Series.  Anyone interested in attending can register here.
 
We round out this edition of Employment & Business Litigation Pointers with an update on COVID insurance coverage litigation from Ryan Maxwell, who drafted an article entitled “First COVID-19 Business Interruption Appellate Decision Finds For Carrier: “Physical” Is The Key”.  Ryan was quoted in a Law360 Opinion column on the same subject.

President Biden’s Proposed Regulation of Non-Competes:  Three FAQs

By Joseph S. Brown, Esq.

On July 9, 2021, President Biden signed an Executive Order on “Promoting Competition in the American Economy”.  The White House also issued a Fact Sheet announcing that the Order would, “[m]ake it easier to change jobs and help raise wages by banning or limiting non-compete agreements and unnecessary, cumbersome occupational licensing requirements that impede economic mobility.” 

So, what does the Order mean for New York employers with non-compete agreements?  As explained below, the Order does not prohibit non-competition agreements and is not likely to have any immediate impact.  But New York employers should anticipate that federal and state regulators will be increasingly hostile toward non-compete agreements in the years to come.

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HERO Act Update: Model Airborne Infectious Disease Prevention Plans Released
By Katherine L. Wood, Esq.

In May, New York State passed the New York Health and Essential Rights (“HERO”) Act, which took effect on June 4, 2021.  The HERO Act imposes many workplace safety requirements on employers with the aim of preventing the spread of COVID-19 and other airborne diseases.  Among those requirements is the obligation to implement an industry-specific health and safety plan.  Last week, the New York State Department of Labor (“NYS DOL”) released model prevention plans for employer use.  Employers have 30 days from the release of the model prevention plans—until August 5, 2021—to adopt their own plan.

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Please join myself and attorney Joseph S. Brown on Monday, July 26th at 12pm as we review the HERO Act as part of the Better Business Bureau Webinar Series.  Anyone interested in attending can register here.

First COVID-19 Business Interruption Appellate Decision Finds For Carrier: “Physical” Is The Key

By Ryan P. Maxwell

On Friday, July 2, 2021, the Eighth Circuit Court of Appeals rendered a decision in Oral Surgeons, P.C. v. The Cincinnati Insurance Company, Case No. 20-3211 (8th Cir. July 2, 2021), upholding the decision of the trial court from the United States District Court for the Southern District of Iowa.  Finding for Cincinnati, the Eighth Circuit held that a “loss” defined as “accidental physical loss or accidental physical damage” requires “some physicality to the loss or damage of property—e.g., a physical alteration, physical contamination, or physical destruction.” Accordingly, in order to trigger business interruption coverage under Cincinnati’s policy there was an “unambiguous requirement that the loss or damage be physical in nature,” which Oral Surgeons failed to plead, let alone prove.

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Editor:
Joseph S. Brown, Esq.

Hurwitz & Fine's Labor & Employment team is here to answer your questions:

Labor & Employment Law
Ann E. Evanko, Esq. ([email protected])
Andrea Schillaci, Esq. ([email protected])
Joseph S. Brown, Esq. ([email protected])
Amber E. Storr, Esq. ([email protected])
Katherine L. Wood, Esq.