In the midst of a second and serious wave of the COVID-19 pandemic, New York has been busy updating guidance, restrictions and other laws. While seemingly unrelated, each is a direct result of what we are experiencing in this new normal environment. They include travel advisories, New York Forward Phase IV regulations and amendments to the WARN Act.
On October 4, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.67, which further tolled New York statutes of limitations until November 3, 2020, and extends a toll first instituted by Executive Order 202.8 on March 20, 2020. Executive Order 202.67 is the latest order extending the initial toll of New York’s statutes of limitations that Governor Cuomo ordered at the onset of the COVID-19 pandemic.
The New York Supreme Court recently ruled that under the COVID-19 emergency amendments to the New York Not-for-Profit Corporation Law (N-PCL), a homeowners’ association board of directors’ decision to not hold an in-person annual meeting, but instead use measures including a telephonic meeting, mail-in voting for the election of new directors and pre-meeting submission of proposed business, complied with HOA bylaws and the N-PCL.
With COVID-19 continuing to spread through much of the U.S., working from home has become the preferred, if not required, form of work for many employers and their employees. Entering the pandemic’s sixth month, this new work-life arrangement shows no signs of stopping anytime soon.
Working from home may trigger a host of unforeseen state tax consequences for employers and employees alike, particularly in the Northeastern U.S. where people frequently cross state lines to travel between their office and home.
One industry in particular has seen, and may continue to see, a substantial state tax benefit from remote working arrangements: hedge fund and private equity fund managers with offices located in New York City.
Judge J. Paul Oetken of the Southern District of New York found the United States Department of Labor exceeded its authority when it limited eligibility to leave under the Families First Coronavirus Response Act. The decision affects employers in New York (unless the court issues a stay pending appeal) and vacates the definition of “health care provider” and provisions regarding leave eligibility if an employer does not have work for the employee, intermittent leave approval of the employer and providing leave documentation prior to taking FFCRA leave.
At the beginning of the COVID-19 pandemic, U.S. employers were asking employees to report if they had visited certain countries and, if the answer was yes, the employees were subject to at least a 14‑day quarantine. As the pandemic resurges after the U.S. effectively has gone green, travel-related quarantines are now back after visiting certain states within the U.S.
To date, approximately 150 business-interruption insurance coverage lawsuits have been filed in federal courts arising from COVID-19 and related government-ordered restrictions. In what appears to be the first substantive ruling on the merits in these cases, the Southern District of New York recently ruled against an insured who could not meet its burden to show a likelihood of success in establishing “property damage” due to the novel coronavirus to support its claim for injunctive relief. Judge Caproni expressed sympathy “for every small business that is having difficulties during this period of time,” but concluded that “New York law is clear” in requiring actual property damage to trigger business interruption coverage. Because the insured’s coverage theory rested on a government shutdown in the absence of any property damage, the Court denied its preliminary injunction motion, reasoning “this is just not what’s covered under these insurance policies.”
Governor Cuomo announced today that global public health experts have given Western New York the green light to enter Phase III reopening, joining five other New York regions already in Phase III— Central New York, the Finger Lakes, the Mohawk Valley, the North Country, and the Southern Tier. The Capital Region, which encompasses Albany, the state capital, is on track to follow suit on Wednesday, June 17. Gatherings of up to 25 people will also be permitted in regions currently in or entering Phase III. This is an expansion from the previous restriction of 10 people.
The benchmark numbers continue to go down according to the press release—the three-day average on COVID-19 related hospitalizations and fatalities has hit the lowest point since the beginning of the pandemic. Only 1.1% of 56,611 tests that took place across the state yesterday came back positive. Even in New York City, the state’s COVID-19 epicenter, the testing came back positive at a rate of 1.3% on Sunday, down from 1.4% on Saturday, and 1.7% on Friday. New York City is currently in Phase I.
On Friday, June 5, Duane Morris’ New York office provided meals from Shake Shack to healthcare workers on the front lines at Mount Sinai West. This is part of our firmwide initiative Meals for Healthcare Heroes. This program is funded by donations from Duane Morris attorneys and staff and is meant to honor the Healthcare workers and support local restaurants. This is the second of 15 Meals for Healthcare Heroes events Duane Morris’ COVID-19 Strategy Team will be hosting nationwide.
On May 26, 2020, New York City Mayor Bill de Blasio signed into law NYC Council Int. No. 1932-A and NYC Council Int. No. 1914-A, which provide greater protections for commercial tenants affected by the COVID-19 pandemic.