On June 23, 2021, Governor Cuomo announced that the State-of-Emergency in New York declared as a result of the COVID-19 pandemic ends June 24, 2021.  Health care providers who are operating pursuant to any of the Executive Orders that are still in place will need to begin to modify operations to be consistent with the laws that were in place prior to the COVID-19 pandemic, subject to any guidance that may be published by the applicable agencies.  Health care providers should be monitoring agency guidance regarding topics such as COVID testing and vaccination, and telehealth, including who may provide such services going forward, where such services can be provided and under what circumstances.  Governor Cuomo’s announcement does not affect any Federal mandates that may be in effect.

Should you have any questions as to how Governor Cuomo’s latest announcement may affect your operations, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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On June 10, 2021, OSHA issued an Emergency Temporary Standard (the “Standard”) specific to COVID-19, including health screening mandates and COVID-specific protocols, and paid leave requirements for certain healthcare providers.  The Standard generally enforces CDC protocols that have been recommended during the pandemic.  On the same day, OSHA also issued “Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” for all other employers (the “Guidance”).  The Guidance focuses on protections for unvaccinated or otherwise “at-risk” workers, who are described as those that “cannot be protected through vaccination, cannot get vaccinated, or cannot use face coverings.”  The Guidance notes that, unless otherwise required, most employers no longer need to take steps to protect fully vaccinated workers who are not otherwise at-risk from exposure to COVID-19 in the workplace, or well-defined portions of the workplace, where all employees are fully vaccinated.

In addition to the Standard and Guidance, it is important to confirm with state and local requirements as well.

Guidance For Health Care Employers

The Standard broadly applies to workplaces that provide healthcare services, such as hospitals, nursing homes, assisted living facilities, and federally qualified health care centers.  However, the Standard exempts certain settings:

  • employers performing healthcare services on an outpatient basis in a non-hospital setting, if non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter;
  • well-defined hospital ambulatory care settings where all employees are fully vaccinated, all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not allowed to enter;
  • home health care settings where all employees are fully vaccinated, all non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not present;
  • pharmacists dispensing prescriptions in retail settings;
  • healthcare support services not performed in a healthcare setting (e.g., off-site laundry or medical billing); and
  • telehealth services performed in a setting where no direct patient care occurs.

If not exempt, the Standard mandates that healthcare providers adopt the following:

  • Develop and implement a written COVID-19 plan which includes a hazard assessment and policies to minimize COVID-19 transmission;
  • Require social distancing of at least six feet apart when indoors and, in instances where employees cannot be separated at least six feet, install barriers at work stations in non-patient care spaces;
  • Impose health screening and reporting requirements on employers and employees, including:
    • Screening employees before each work day or shift;
    • Requiring employees to notify their employer when they are experiencing symptoms or have tested positive for COVID-19; and
    • Notifying certain employees within 24 hours when a COVID-19 positive employee has been in the workplace.
  • Provide reasonable time and paid leave for employees to receive COVID-19 vaccinations and recovery from vaccine side effects, if necessary (remember to check your local and state law for requirements);
  • Create a log of all employee instances of COVID-19 and report all work-related COVID-19 fatalities and in-patient hospitalizations to OSHA; and
  • Paid leave requirement: if an employee is required to be out of the workplace due to positive or suspected positive COVID case, employers are responsible for continuing to provide the employee with benefits and pay at the employee’s regular rate of pay, up to $1,400 per week, until the employee meets the return to work criteria. This does not apply to employers with 10 or fewer employees.  Employers with less than 500 employees must pay a removed employee up to $1,400 per week, but beginning in the third week post-removal, this amount is reduced to only two-thirds of the employee’s pay, up to $200 per day.  These payment obligations are reduced by compensation that removed employees receive from any other source (i.e., from a publicly or employer-funded compensation program such as paid sick leave).  Importantly, employers are not required to remove employees that do not experience symptoms and have been fully vaccinated against COVID-19 or had COVID-19 and recovered within the past 3 months.

The Standard will be effective immediately upon its publication in the Federal Register.  Once published, employers must comply with most provisions within 14 days, and with provisions involving physical barriers, ventilation, and training within 30 days.

Guidance For All Other Employers

The Guidance provides examples of measures that can be taken to protect unvaccinated and at-risk workers, which include:

  • Providing paid time off for employees to obtain vaccinations;
  • Instruct workers that are infected, have been exposed, or present symptoms of COVID-19 to stay home from work;
  • Implement physical distancing measures for unvaccinated and at-risk employees in communal work areas, limit the number of unvaccinated and at-risk workers that can be in one place at any time, and install barriers at work stations where unvaccinated and at-risk workers cannot be six feet apart;
  • Require unvaccinated and at-risk and wear face coverings and provide PPE and face coverings to them, unless their task requires a respirator or other PPE;
  • Suggest that unvaccinated customers, visitors, or guests wear face coverings, especially in public-facing workplaces such as retail establishments;
  • Educate and provide accessible training workers on COVID-19 policies and procedures;
  • Record and report COVID-19 infections and deaths;
  • Follow CDC routine cleaning and disinfection guidelines and maintain ventilation systems; and
  • Create an anonymous reporting process for workers to voice COVID-19 related concerns and implement protections against retaliation.

The Guidance also contains an Appendix which describes best practices for “higher risk” workplaces, such as manufacturing, retail and grocery, seafood, and meat and poultry processing workplaces, that have workers with mixed-vaccination status working in close contact for longer durations of time.

Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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On June 11, 2021, the New York Department of Health (DOH) posted a “Dear Applicant Letter” informing applicants for certificates of need (CON), licensure for adult care facilities (ACF) or licensed home care services agencies (LHCSA) or transfer of ownership interest notices of its new policy regarding evaluation of the applicant’s character and competency.  A CON is required for establishment of and certain transfers of ownership of several types of facilities, including, without limitation, hospitals, ambulatory surgery centers, and diagnostic and treatment facilities. Going forward, DOH will maintain a database of any such application or notice undergoing a character and competency review and will consider applications/notices that contain false or inaccurate information or that have omitted material information at any point in the process as a factor in its approval recommendation both in the current application and in subsequent reviews.

Character and competency information will be maintained in the database and available for DOH’s review for the following time periods:

  • Seven years for Article 36 home care agencies; and
  • Ten years for all other applicants.

DOH will notify applicants of any discrepancies that it identifies in a submission and afford the applicant an opportunity to provide a written explanation or supplemental information to account for the discrepancy.  Such information must be submitted within seven calendar days from the date of the DOH notification.  If DOH finds that the explanatory information is false or fails to explain the identified discrepancy, it may automatically recommend disapproval of the applicant’s character and competency for a period of three years and will consider such information for as long as it is maintained in the database.

Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at info@garfunkelwild.com.

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Click Here to download the Legal Alert.

 

Robert Koonin And Cynthia Thomas, co-authored the article “Look before you lease: Landlord considerations in renting to the cannabis industry,” published on the front section of New York Real Estate Journal’s website. Click Here to read the article or see below.

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Imagine reading the newspaper when a headline catches your eye, “New Market Expecting Multi-Billion Dollar Growth in Coming Years.” You continue reading in the hopes of uncovering more about this unfamiliar industry and gaining insight into how you might, as a commercial landlord, be able to take advantage of such potential growth. When you realize that the article is addressing New York State’s recent legalization of recreational marijuana, you begin wondering whether you are equipped to wade through the murky waters of an entirely new regulatory landscape. While there are still many unknowns, and the final regulatory framework remains uncertain, you can undoubtedly be well positioned to ensure that you are at the forefront of this bourgeoning, multi-billion dollar, market.

On March 31, 2021 governor Andrew Cuomo signed the Marijuana Regulation & Taxation Act (MRTA) legalizing cannabis use for adults 21 years of age and older in New York State.1 The licensing process for cultivators, processors, distributors and dispensaries will be regulated through the Office of Cannabis Management (OCM) governed by the Cannabis Control Board2 and while retail sales are not anticipated to begin until 2022, the moment is ripe to begin thinking critically about how to take advantage of market opportunities. The New York Medical Cannabis Industry Association recently retained MPG Consulting to, among other things, quantify the necessary retail licenses and cultivation space required to facilitate the cannabis market.3 Total market size in New York is estimated to reach $4.6 billion in 2023 and is projected to grow to $5.8 billion by 2027, resulting in a total economic impact in excess of $10 billion.4 As the market develops, not only will demand for retail space increase, but it is estimated that approximately six million s/f of cultivation space will be necessary to meet market demand.5

Before diving headfirst into the market, there are several matters that commercial property owners must weigh and consider. Importantly, the MRTA provides that no applicant will be granted a retail license unless the applicant can demonstrate that it has control over the premises through direct ownership, a lease, management agreement, or other agreement.6 Site control is a requirement that is routinely necessitated by New York State in other non-cannabis related areas of healthcare (e.g. hospitals, nursing homes and other Article 28 facilities). Consequently, landlords must be willing to negotiate and enter into a lease prior to confirmation that the proposed tenant has received license approval.

In addition, landlords owning properties financed with mortgages from federally charted banks will find themselves prohibited from leasing to cannabis related businesses, such as retailers, cultivators, processors, and distributors. Marijuana is still deemed an illegal drug under federal law and financial institutions are prohibited from lending to businesses involved in the sale or production of marijuana. Fortunately, commercial property owners may find relief from this restriction as the Secure and Fair Enforcement Banking Act of 2021 or the SAFE Banking Act of 2021, was recently passed by the United States House of Representatives. The SAFE Banking Act of 20217 offers a glimmer of hope by prohibiting federal banking regulators from punishing a financial institution for providing banking services to cannabis-related businesses. Unfortunately, until formal legislation is enacted some commercial landlords may find their hands tied and should proceed cautiously before leasing space to cannabis related entities.

Landlords in New York could also face additional hurdles if their property is located in a municipality that exercised their “opted-out right.” Municipalities have the choice to “opt-out” by adopting local laws requesting that the Cannabis Control Board prohibit the establishment of retail dispensary licenses and/or on-site consumption licenses in that particular jurisdiction. Municipalities have until December 31, 2021 to make this election, and such election can be subsequently repealed at the municipality’s election.8 While the MRTA specifically provides that on-site consumption licenses will not be granted to any premises within 500 ft. of a school or 200 ft. of a house of worship, municipalities are also free to adopt reasonable restrictions on the time, place and manner of operations, provided that such limitations do not effectively make the operation of such business “unreasonably” impractical.9 As such, even if federal and state laws allow landlords to lease space to cannabis-related tenants, local municipal law may create another roadblock.

Although the regulatory framework remains unclear, as the market matures, it will certainly offer a new avenue of opportunity for commercial landlords in all property classes, provided that due consideration is paid to local, state and federal requirements.   

Should you have any questions regarding the above, please contact us at 516-393-2200 or info@garfunkelwild.com.

 

Garfunkel Wild Complimentary Webinar – Legalized Medical and Recreational Marijuana: Navigating The Ever-Shifting Landscape For Employers

Tuesday, June 29, 2021
12:00 pm – 1:00 pm (EDT)

Speakers:  Andrew Zwerling and Salvatore Puccio 

Garfunkel Wild’s Andrew Zwerling and Salvatore Puccio  will present the webinar “Legalized Medical and Recreational Marijuana: Navigating The Ever-Shifting Landscape For Employers″ on June 29, 2021.

A growing number of states have decriminalized marijuana use. Yet, under federal law, marijuana use and possession remains illegal, leaving employers in a quandary. This webinar will help employers understand their obligations and how to avoid some of the pitfalls that may await the uninformed.  Some of the topics to be addressed in this webinar include, but are not limited to, the following:

  • Avoiding disability discrimination claims made by those using medical marijuana.
  • How these statutory developments affect the issue of drug testing, both pre-employment and post-employment.
  • Resolving the issue of whether a drug-free workplace policy is a viable objective.
  • The ability of an employer to base employment decisions on an employee’s marijuana use.

Click Here To View