NY Governor Suspends Statute of Limitations

NY Governor Suspends Statute of Limitations

By John A. Risi. September 2020 – Update As New York State settles into its “new normal,” Governor Cuomo continues to issue executive orders addressing matters from school openings to procedures for public hearings.  His latest Executive Order (EO-260), dated September 4th, 2020, continues the tolling of the Statute of Limitations through October 4th, 2020, with a minor exception lifting the toll relative to the time to challenge the approval by any municipal government or public authority of a construction project that includes either affordable housing or space for use by not-for-profit organizations. July 2020 – Update While all regions of New York State are in different phases of the re-opening process, as new COVID-19 cases largely remain at their lowest levels in New York State, Governor Andrew Cuomo continues to take a more cautious approach to re-opening, which can be seen in his most recent Executive Order.  The Order (202.48), continues to toll New York’s statute of limitations for the commencement of lawsuits and even the filing of Notices of Claim (a legal pre-requisite to commencing litigation against governmental entities and municipalities) through August 5, 2020. The governor had initially taken this step on March 20, 2020 and signed subsequent orders continuing the toll, including his most recent order of July 6, 2020. Included in the tolling are any specific time limits relating to notices (such as a Notice of Appeal) and motions. PMT will continue to follow important developments such as this most recent Executive Order and keep our valued partners abreast of all matters of significance to our shared business interests as we appreciate the recent...
New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

New York Workers’ Compensation Board Clarifies: Workers Can Receive Compensation Benefits if They Get COVID-19 While Working

By Thomas M. Bona and Anthony M. Napoli. The New York State Workers’ Compensation Board has issued guidance and clarified that a worker who contracts COVID-19 while working is entitled to Workers’ Compensation benefits. The Board noted that the claim would be reviewed by the employer’s Workers’ Compensation insurance carrier and if the insurance carrier accepts the claim, the COVID-19 claim would be covered and compensable. If the carrier disputes the claim, a judge at the Workers’ Compensation Board will decide whether the claim should be paid. The judge would listen to the testimony of the worker and testimony of the medical provider to decide whether the worker was exposed to COVID-19, the extent of the exposure and whether the exposure to COVID-19 was prevalent in the work environment. The Board noted that most workers will never be able to point to the moment or method of exposure to COVID-19, but workers can demonstrate the significantly elevated risk in their workplace by demonstrating the nature and extent of their work in an environment or where exposure to COVID-19 was prevalent. The Board advised that the issue of causality regarding Workers’ Compensation claims resulting from COVID-19 is of a great importance. Accurate documentation regarding the patient’s work exposure is critical for workers to obtain appropriate benefits. Additionally, the provider’s opinion regarding the likelihood of work-related disease transmission should be included in the medical narrative. If the provider believes that the worker in their medical judgment, is likely to have contracted COVID-19 through a work exposure, it should be reported as such. The Board advised that a medical report from an...
Look What We Found: Legislature Revises Immunity Provisions for Health Care Facilities

Look What We Found: Legislature Revises Immunity Provisions for Health Care Facilities

By Thomas M. Bona. We recently told you about a limitation of liability provision for hospitals and nursing homes that was inserted into the last New York State budget. This provision granted immunity from civil and criminal  liability for any harm or damage alleged to have been caused as a result of an act or omission in the course of arranging for providing health care services if the health care facility or health care professionals were providing services pursuant to a COVID-19 emergency rule. We advised you that New York State legislators were caught off guard and not aware of the legislative immunity provision until the very last moment. When the legislature was in session in July, the Legislature quickly went to work at limiting the immunity provisions that they had just passed. The revised bill, which was just signed by Governor Cuomo, limits immunity to health care professionals providing diagnosis or treatment for confirmed or suspected COVID-19 patients, but does not apply to prevention or care of non-COVID-19 patients or to hospitals for arranging health care services. The revised legislation took effect immediately and applies to cases accruing after its enactment. So it now seems that the legislature has finally gotten the bill the way they intended it to be which is to provide immunity from liability for health care facilities for COVID-19 diagnosis or treatment. Should you have any questions, please call our office at (914) 703-6300 or contact: Jeffrey T. Miller, Executive Partner...
Look What We Found: Liability Shield Added Into New York State Budget for Hospitals and Nursing Homes for COVID-19

Look What We Found: Liability Shield Added Into New York State Budget for Hospitals and Nursing Homes for COVID-19

By Thomas M. Bona. Although every industry wants immunity from liability, the hospital and nursing home industry got just that in the latest New York State budget bill. After months of lobbying and with the investment of hundreds of thousands of dollars in fees to lobby state legislators, hospitals and nursing homes received immunity from liability due to the coronavirus pandemic in a bill that was added into the latest New York State budget bill this past spring. The new law provides for immunity from civil and criminal liability for any harm or damage alleged to have been caused as a result of an act or omission in the course of arranging for providing healthcare services if the healthcare facility or healthcare professional was providing services pursuant to a COVID-19 emergency rule. The law provides for immunity for any act or omission occurring in the course of arranging for providing healthcare services and treatment impacted by professionals’ decisions or activities in response to orders as a result of the COVID-19 outbreak. The new law does not apply to willful, intentional, criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm. However, acts or omissions or decisions resulting from a resource or staffing shortage are free from liability. The law also covers volunteer organizations. New York State Legislators described themselves as blindsided since the provision was inserted little more than hours before the bills were printed and voted on. Clearly, the decision was made as a policy matter to provide hospitals and nursing homes with immunity due to the unprecedented COVID-19 crisis. Should you have any questions, please call...
COVID-19 Litigation Concerns Resulting from Businesses Reopening

COVID-19 Litigation Concerns Resulting from Businesses Reopening

By Nicole Duke and Thomas M. Bona. As states begin to reopen, some businesses are choosing to delay opening their doors. Business owners are considering the risk of a wave of lawsuits that may be filed as a result of deciding to begin work. Employers face potential liability not only from employees who may contract COVID-19 on the job, but also from customers who believe they were exposed by employees. As quoted by Todd Maisch, head of the Illinois Chamber of Commerce, “[f]or an employer wanting to get back to normal business, this could be the third crisis facing the nation. The first being the health crisis, the second being the economic crisis, the third being years of a liability crisis.”[1] Personal injury and wrongful death lawsuits are concerning for businesses that are already suffering financially from shutdowns. Though owners are attempting to protect themselves, this is an unprecedented situation that the Courts will have to face, and responses may vary state to state. In April, Georgia was at the forefront of the push to reopen. On April 24, 2020 Georgia Governor Brian Kemp issued an order reopening certain businesses including hair salons. The salons that have chosen to reopen have set up strict protocols. For example, a single customer may be allowed in a shop at a time and customers must agree to temperature checks before being permitted to enter. Focus on sanitary conditions is even more stringent than usual, and employees and clients must wear masks. Nevertheless, business owners are still concerned with potential litigation if either an employee or customer was to contract the virus. A...
Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

Employee Privacy during COVID-19 in Pennsylvania, New Jersey, and New York

By Michael Brumbach, Lisa Grandner and Andrew Ho. As America starts to get back to our new “normal”, some employers have already been taking precautions for the reopening of America’s businesses. Such precautions have included mask requirements, staggered work schedules, and temperature/fever tests. However, businesses may now find themselves in possession of health information and must keep in mind that there are significant legal ramifications when handling employee (or other) health data. With this in mind, the following article includes recommendations from the U.S. Equal Employment Opportunity Commission (EEOC) regarding COVID-19, as well as laws to look out for when dealing with employee health data. The most glaring protections of employee health data stem from the Health Insurance Portability and Accountability Act of 1996, otherwise known as HIPAA.  However, recent developments in New York law, namely the SHIELD ACT, may have created new consequences for businesses that fail to properly protect their employee’s health information. HIPAA requires that employers keep medical records confidential, and isolate medical records from files that employees such as supervisors or managers may access. This information includes: health insurance documents, requests for medical leaves of absence, FMLA reports, documentation regarding the underlying matters for FMLA paperwork, physician’s examination reports, medically-related excuses for absenteeism, medical job restrictions, accident and injury reports, worker’s compensation reports, and any other document that contains private medical information about an employee. The Americans with Disabilities Act (ADA) requires that all medical information, including COVID-19 related documentation, for employees be stored separately from the employee’s personnel file. Businesses may maintain logs of temperature results, but they must keep this information confidential. However,...