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Employment & Business Litigation Pointers - Volume II, No. 4

Employment & Business Litigation Pointers
Volume II, No. 4
Thursday, August 19, 2021
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.
 
If you know of others who may wish to subscribe to this free publication, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.
A Note from Joseph S. Brown, Esq.
 
The country’s response to the COVID-19 pandemic continues to shape employment law developments that are addressed in this edition of Employment & Business Litigation Pointers.  The Centers for Disease Control and Prevention’s revisited its recommendations for fully vaccinated individuals, which my colleague Katie Wood discussed in her article “Employers Take Note: CDC Revised Mask Guidance May Require Workplace Changes.”  Employers should note that OSHA issued updated guidance last week to better align with the CDC guidance. I covered the issue of “What Employers Need to Know About Long Covid Disability Claims” in a recent article discussing guidance issued by the Department of Justice and Department of Health and Human Services.  Finally, Ann Evanko and our summer law clerk Evan Gestwick actually discuss something non-Covid related when they tackle “The Age-Old Argument Of Who Qualifies As An Independent Contractor”.
 
I would also like to remind our readers about resources for other employment issues that have been in the news lately.
 
First, New York Governor Cuomo announced his resignation last week due to the fallout from a scathing investigation report into allegations of sexual harassment.  One of the report’s conclusions was that the Governor’s Executive Chamber “faced greater difficulties in reporting unwelcome conduct by the Governor due to a poor understanding of the policies and procedures for identifying and reporting sexual harassment within the Executive Chamber, which was exacerbated by an inconsistent enforcement of the policies and procedures for reporting sexual harassment— particularly if the alleged conduct was carried out by the Governor or his senior staff.”
 
In other words, it is not enough for an employer to simply adopt policies and meet bare minimum training requirements.  Consistently applying those policies – as well as building a culture of respect and inclusiveness – are critical to minimizing liability.  My colleague Ann Evanko addressed these concepts in April with “Tips on Complying with New York’s Sexual Harassment Prevention Rules”.  At this point, I will steal my insurance coverage partner, Dan Kohane’s marketing tagline: Do you have a situation?  We love situations.  If you need help with training, advice on complex situations, or require an experienced attorney to conduct an independent investigation and make recommendations, the Hurwitz & Fine team can assist.
 
Second, August 5, 2021 marked the deadline for New York businesses to adopt the airborne disease prevention plan that meets or exceeds the minimum requirements of the HERO Act.  Yet some employers have not yet completed this task as they address more pressing business developments.  Go to the NY Department of Labor’s website for more details and model policy forms. If you need more help, here is a link to a PowerPoint presentation that Katie and I shared during a webinar for the Better Business Bureau last month.
 
Speaking of building an inclusive culture, Firm President and Managing Partner, Jody E. Briandi was recently featured in a Buffalo Business First Diversity & Inclusion event as an expert panelist. You can read the article and watch a recording of the discussion here. We also congratulate Jody for her inclusion in Buffalo Business First's 2021 Power 200 Women and being honored as a Women of Influence award recipient!
 
What Employers Need to Know About Long Covid Disability Claims
By Joseph S. Brown, Esq.

Long Covid is a condition where people experience long-term Covid-19 symptoms long after clearing the actual virus from their system.  According to recent guidance issued by the Department of Health and Human Services (HHS) and the Department of Justice (DOJ), long Covid can classify as a disability under certain federal laws “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.” 

 
The Age-Old Argument Of Who Qualifies As An Independent Contractor
By Ann E. Evanko, Esq. and Evan Gestwick

In the waning weeks of a tumultuous term in Office, then-President Donald J. Trump suspended what had been known and relied upon as a long-standing list of factors used in deciding how to designate a worker as an employee or an independent contractor. President Joseph R. Biden, Jr. then took his seat in the Oval Office and suspended Trump's change, later revoking it entirely. This "see-saw" turbulence has created uncertainty and confusion for employers who seek a more reliable way of determining who can withstand the United States Department of Labor ("DOL") or Internal Revenue Service ("IRS") scrutiny of one's designated status.

 

 
Employers Take Note: CDC Revised Mask Guidance May Require Workplace Changes
By Katherine L. Wood, Esq.

Due to concerns over the Delta variant of COVID-19, the CDC has reversed its prior guidance, now stating that fully vaccinated individuals should wear masks when indoors in COVID-19 hot spots.  Previous CDC guidance stated that fully vaccinated individuals no longer had to wear masks in public places.  Employers should be aware of this changing landscape, as workplace safety implications are likely to arise as CDC guidance changes.

Over the course of the pandemic, we have seen the Occupational Safety and Health Administration’s (“OSHA”) guidance coinciding with recommendations from the CDC.  OSHA has not yet updated its mask guidance, however, we will be watching this issue closely over the coming days. 

 
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. ([email protected])
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