Employment & Business Litigation Pointers - Volume II, No. 6


Employment & Business Litigation Pointers

Volume II, No. 6
Thursday, October 28, 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.

October was a busy month with several key employment law developments impacting New York employers on issues such as the Health and Essential Rights (HERO) Act, vaccine mandates and exemptions, and workplace protections for recreational cannabis users.
New York State’s Department of Labor (NYSDOL) weighed in with updated FAQs and model policies on the HERO Act, which I address in my article “NY HERO ACT UPDATE: COVID-19 Designation Extended to October 31, 2021, New Guidance and Updated Model Plans.” Employers should continue to monitor information from the NYSDOL concerning the HERO Act, including the expected guidance concerning Section 2 of the Act, which takes effect on November 1, 2021, and requires employers with at least 10 employees to allow employees to form workplace safety committees.
NYSDOL also tackled several key employment law issues as it relates to recreational cannabis use and New York Law Labor Law §  201-D, which protects employees’ right to engage in certain recreational activities outside of work, that I summarized here
And my colleague Katherine Wood analyzed recent guidance on COVID-19 from the U.S. Equal Employment Opportunity Commission in her article “EEOC Releases Guidance on COVID Vaccine Mandates and Employer Incentives.” 
Late last month, I sat down with Buffalo Business First for an interview concerning “Mental health concerns and your workers: What employers need to know” to address questions such as what happens if your employee approaches you with a mental health crisis.  And earlier in October, Katie and I conducted annual NYS sexual harassment prevention training in partnership with the Cheektowaga Chamber of Commerce.  If your company needs training on employment law, first & third party coverage, or litigation related topics, check out our website: https://www.hurwitzfine.com/training-opportunities
Election Day is November 2, so employers should be mindful of their responsibilities under New York State’s Voting Leave Law and the required posting, which Katie summarized last year.
Finally, Hurwitz & Fine continues to grow! Last month, we welcomed five associates pending admission to our insurance and litigation groups, and this month, we welcome attorneys Jesse L. Siegel and Michael J. Williams to our litigation team.  Jesse has joined our Melville team, and will work with our downstate team in NYS Labor Law & Construction Defect, Automobile, Premises, and General Liability Defense matters. He brings over a decade of experience as a civil litigator, conducting both bench and jury trials in the District, Civil and Supreme Courts of Nassau County and Suffolk County, as well as the five boroughs of New York City.  Mike has joined our Buffalo office, and will focus his practice on CVA claims, Product Liability and Municipal Law matters. Welcome Jesse and Mike!


NY HERO ACT UPDATE: COVID-19 Designation Extended to October 31, 2021, New Guidance and Updated Model Plans

As we previously reported, on Labor Day (September 6, 2021), New York Governor Kathy Hochul announced that the Commissioner of Health had designated COVID-19 a highly contagious communicable disease that presents a serious risk of harm to the public health under the New York Health and Essential Rights (“HERO”) Act.  This designation, originally set to expire on September 30, 2021, required all employers to implement workplace safety plans under the HERO Act.  More recently, the Commissioner of Health quietly extended the designation until October 31, 2021 and the New York State Department of Labor (“NYSDOL”) released updated Information & FAQs on the HERO Act and updated the Model Airborne Infectious Disease Exposure Prevention Plan.  This alert summarizes these recent developments.

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NYS Department of Labor Issues FAQs on Employment Issues Related to Recreational Cannabis Use

As we previously reported, in March 2021, former Governor Cuomo signed the “Marihuana Regulation and Taxation Act” (“MRTA”) which legalized the recreational use of marijuana for individuals over the age of 21. The MRTA significantly impacts the ability of New York employers to maintain a drug-free workplace.  More specifically, the MRTA amends New York Law Labor Law §  201-D, which protects employees’ right to engage in certain recreational activities outside of work.  In other words, the recreational cannabis user is now a protected classification of worker.  Earlier this month, New York’s Department of Labor (NYSDOL) tackled some of key employment law issues in a recent FAQ document.

The FAQ document provides a concise overview of several employment law related topics.  The key takeaways are summarized:

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EEOC Releases Guidance on COVID Vaccine Mandates and Employer Incentives

With the COVID-19 vaccine now widely available, employers continue to ask questions about what they can do to ensure or encourage vaccination for all of their employees.  New guidance released by the Equal Employment Opportunity Commission (“EEOC”) on October 13, 2021, discusses vaccine mandates and employer incentives for vaccination.  The new guidance also discusses employer requests for vaccine confirmation and confidentiality of employees’ vaccine information.

The guidance aims to assist employers in complying with the Americans with Disabilities Act (“ADA”), Title VII, and Genetic Information Non-Discrimination Act (“GINA”) in the COVID-19 context.  Employers should continue to consider the EEOC’s developing guidance when developing vaccine-related policies.

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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])
Amber E. Storr, Esq. ([email protected])

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