Month: August 2021

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COVID-19 Confirmatory Testing for Skilled Nursing Facilities

A new regulation has been initiated by the New York State Department of Health (“DOH”) effective August 12, 2021.

Section 415.33 of 10 NYCRR Confirmatory Testing is added to the regulations as follows:

“(1) Any resident with symptoms of COVID-19 or who has been exposed to COVID-19 shall be tested for the COVID-19 virus, along with any other clinically appropriate testing.

(2) Whenever a person expires while in a nursing home, wherein the professional judgment of the nursing home clinician there is a clinical suspicion that COVID-19 was a cause of death, but no such test was performed in the 14 days before death, the nursing home shall administer a COVID-19 test within 48 hours after death, along with any other clinically appropriate testing. Such COVID-19 test shall be performed using rapid testing methodologies to the extent available.”

The facility shall report the death to the Department immediately after and only upon receipt of such test results through the Health Emergency Response Data System (HERDS). Notwithstanding the foregoing, no test shall be administered if the next of kin objects to such testing. Should the nursing home lack the ability to perform such testing expeditiously, the nursing home should request assistance from the State Department of Health.”

This emergency regulation also states that no test shall be administered if the next of kin objects. The nursing home should request assistance from the DOH should the facility not have the adequate effectiveness to execute the testing quickly but carefully.

The healthcare attorneys at Abrams Fensterman are committed to providing you with the most current and accurate information and guidance. If you have any questions, please contact Patrick Formato, Esq., Barbara Stegun Phair, Esq., Frank Mazzagatti, Esq., Michael Bass, Esq., Richard Thomas, Esq., Jonathan Rogoff, Esq., or any other attorney in our health law practice group.

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Vaccine Mandates: An Update for Employers

Doctor giving covid injection On August 22, 2021, the Federal Drug Administration (“FDA”) announced that it has approved the Pfizer COVID vaccine to be given to adults. This is the first vaccine to receive the FDA’s full endorsement. Prior to this approval, the FDA gave emergency approval (EUA) due to the urgency of the situation and as stated: The “FDA may authorize unapproved medical products or unapproved uses of approved medical products to be used in an emergency“.
Now since there is official confirmation that the vaccine can be used, meaning that it is totally legal, employers can feel confident when formulating a COVID vaccine policy for employees without any serious retribution. The EEOC, CDC, and State agencies have previously approved the vaccine, but now that the FDA has approved it, its use is indisputable.

The Occupational Safety and Health Administration (OSHA) has recently issued guidelines from the most recent CDC updates for all places of business. With that said, there are a few contingencies that employers should be aware of.

Employers should establish mandatory testing on a frequent basis. Some businesses are instituting a weekly PCR test for non-vaccinated employees and they are advising individuals who fail to comply with these rules that they will be subject to unpaid leave until the results are provided. Additionally, the EEOC and CDC recommend that all employees wear masks in common or public areas and/or at any location on the company premises where there is a high COVID rate. Social distancing and PPP protocols are also recommended as part of the policy.
These federal agencies also recommend that employers expedite the process of getting their employees vaccinated by offering them paid time off if they require it. They also suggest that employees should get paid sick leave if they feel any side effects from the vaccine. For New Yorkers, this has already been policy.
For those who work in the medical field, there are additional, more specific requirements. One, in particular, is the mandatory policy that all healthcare workers be vaccinated.
Additional information can be obtained by contacting any of the attorneys below.
Sharon P. Stiller, Esq.
160 Linden Oaks, Suite E
Rochester, New York 14625
585.218.9999
Rachel Demarest Gold, Esq.
3 Dakota Drive, Suite 300
Lake Success, New York 11042
516.328.2300
Justin T. Kelton, Esq.
1 MetroTech Center, Suite 1701
Brooklyn, New York 11201
718.215.5300
Maureen T. Bass Esq.
160 Linden Oaks, Suite E
Rochester, New York 14625
585.218.9999
Joanna M. Topping, Esq.
81 Main Street, Suite 306
White Plains, New York 10601
914.607.7010
This email may contain attorney advertising. The material included is intended to be informational and the content should not be interpreted as legal advice.
Abrams, Fensterman, LLP

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NEW YORK HERO ACT – MODEL PLANS RELEASED

Photo of a set of paper documents
Photo by Enrico Mantegazza on

This month, the New York State Department of Labor (DOL) added to its Hero Act the Model Airborne Infectious Disease Exposure Prevention Plan (Model Plan). This plan provides the required steps that all NYS employers must follow by August 17, 2021.

Model Plan Purpose

The purpose of this act is to help decrease and protect employees from acquiring the covid-19 virus, as well as any other airborne infectious diseases that might materialize in the future.

Who is Affected?

This act applies to all employers who have locations in New York State where employees are present. It requires employers to follow this plan within thirty days of the publication release. The due date for adhering to the act is August 17, 2021, since the act was published on July 6, 2021.

Who is Covered?

The responsibilities lie with the employer who is responsible for maintaining control during an outbreak, appropriate infection response, and necessary.

How Should Employers Manage the Model Plan?

Employers have the option to follow the Model Plan or create their own plan so long as they follow the guidelines of the Airborne Infectious Disease Exposure Prevention Standard.

How Can I Obtain More Information?

Complete information about The Model Plan can be found on the provided PDF at the New York State Department of Health (DOL) website.

In addition to the State requirements, the United States Department of Labor requires all healthcare employers to follow COVID-19 Emergency Temporary Standard issued by OSHA published on June 10, 2021.

As with the NYS Hero Act, the ETS requires all healthcare workers to create a designated infectious disease plan. If the company or organization has over 10 employees, the plan must be delivered in writing. Employers can follow the template provided by OSHA regarding covid-19 protection for employees.

Please contact Sharon Stiller, Esq., Maureen Bass, Esq., or Rachel Gold, Esq. with any questions or comments.

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NYC Hotel Tax Reassement New Rulling

In a November 2019 trial, Judge Joseph Risi refused New York City’s appraised values for the Marriott Hotel at LaGuardia Airport. The judge instead used market and assessed values from the hotel taxpayer’s report, since the NYC valuations were done prior to the covid pandemic and show overvalues for hotel properties in the city. This ruling resulted in an 85% tax reduction levied against the hotel.

As per Joel Marcus of Marcus & Pollack LLP, who represented Queens Marriott Courtyard: “Every hotel owner should be cheered by this important decision, which stands for the proposition that you can get a redress and justice through the court system on a property tax challenge,” Jeffrey Lebowitz of Abrams Fensterman was co-counsel.

Noting that this is a new precedent for hotel tax rulings in New York, the firm Marcus & Pollack are looking to additional hotel cases in the future.