New York State Governor Andrew M. Cuomo signs law to protect public officers and employees in New York State in the event of another COVID-19 type of health emergency.

Governor Andrew M. Cuomo announced that he signed a new law* that will protect State officers, employees and officers and employees of political subdivisions of the State and school district personnel  in the event of another COVID-19 type of health emergency.

Those entities are to provide a list of positions considered essential, descriptions of how employees would stagger to reduce overcrowding, and protocols for personal protective equipment [PPE], as well as noting what is required when an employee is exposed to the disease. 

Plans must be submitted to employee organizations and labor management committees within 150 days, and plans must be finalized no later than April 1, 2021.

Operation plans must include:

List and description of positions considered essential;

Descriptions of protocols to follow to enable all non-essential employees to work remotely;

Description of how employers would stagger work shifts to reduce overcrowding

Protocols for PPE;

Protocol for when an employee is exposed to disease;

Protocol for documenting hours and work locations for essential workers;

Protocol for working with essential employees' localities for identifying emergency housing if needed; and

Any other requirement determined by the New York State Department of Health, such as testing and contact tracing.

In addition, the New York State Department of Labor is to provide an online portal for public employees to report violations of health and safety rules for communicable diseases, including COVID-19.

* Chapter 168 of the Laws of 2020. The act requires public employers in New York State to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease which shall include identification of essential personnel, needed personal protective equipment, staggering work shifts and providing necessary technology for telecommuting.

 

The failure to serve a timely notice of claim upon a municipality or public corporation may be excused under certain circumstances

General Municipal Law §50-e requires that a "notice of claim" be served upon the municipality or public corporation within 90 days of the date that the claim arose as a condition precedent to commencing an action sounding in tort against a municipality or public corporation,.* 

The failure to serve a timely the notice of claim was the issue when a petitioner [State Trooper] sought for leave to serve a late notice of claim against the County and the County Sheriff [jointly "the County"] in order to bring a lawsuit against the County for State Trooper's injury she allegedly suffered while she was responding to a 911 call and her state police motor vehicle collided with a motor vehicle operated by a Deputy Sheriff employed by the County.

Supreme Court granted State Trooper's petition seeking to serve the late notice and the County appealed.

The Appellate Division, holding that Supreme Court "providently exercised its discretion" in granting State Trooper's petition to serve a late notice of claim on the County, explained:

1. In determining whether to grant leave to serve an untimely notice of claim, the court, in exercising its discretion, must consider all relevant circumstances, including whether (1) the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice, (2) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay in seeking leave would substantially prejudice the municipality or public corporation in its ability to defend against the action;

2. "The presence or absence of any one of these factors is not necessarily determinative" and "the absence of a reasonable excuse is not necessarily fatal" to the courts granting the petition; and

3. Whether the municipality or public corporation acquired timely actual notice of the essential facts constituting the claim should be accorded great weight.

In this instance the Appellate Division, citing Kuterman v City of New York, 121 AD3d 646, concluded that the County acquired timely, actual knowledge of the essential facts constituting the claim, opining that "[a]lthough a police report regarding an automobile accident does not, in and of itself, constitute notice of a claim to a municipality. Where, however, the municipality's employee was involved in the accident and the report or investigation reflects that the municipality had knowledge that its employee committed a potentially actionable wrong, "the municipality can be found to have actual notice."

The police report, said the court, indicated that the County committed a potentially actionable wrong "when its employee allegedly failed to yield the right of way to the injured [State Trooper's] vehicle even though the injured [State Trooper's] vehicle's lights and sirens were activated" and the accident report indicated that the State Trooper "was allegedly injured in the accident."

Further, noted the Appellate Division, in responding to a Freedom of Information Law for documents related to this accident, the County produced the police accident report, photographs taken of the vehicles and the accident scene, unit activity logs for the vehicles, and the County Sheriff's report regarding the accident. Accordingly, the court concluded that "the County [had] acquired timely actual knowledge of the essential facts constituting the [State Trooper's] claim."

Finding that the County had acquired timely knowledge of the essential facts constituting the State Trooper's claim, the Appellate Division held that the State Trooper met her "initial burden of showing that the County would not be prejudiced by the late notice of claim" and the County "failed to come forward with particularized evidence demonstrating that the late notice of claim substantially prejudiced its ability to defend the claim on the merits."

Addressing the issue of State Trooper's delay in seeking to file a late notice of claim, the Appellate Division ruled that as the County had actual knowledge of the essential facts underlying the claim and as no substantial prejudice to the County was demonstrated, "[State Trooper's] failure to provide a reasonable excuse for the delay in filing [her] notice of claim did not serve as a bar to [Supreme Court's] granting leave to serve a late notice of claim.

* See Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d 672.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_04840.htm

 

 

ADA, FMLA, and the COVID-19 pandemic: How do they all come together?

Join Wolters Kluwer Legal Analyst Pamela Wolf for a one-hour roundtable discussion with a top-notch panel of experts who will help sort out employee leave issues, how the ADA and the FMLA intersect, and the impact of the FFCRA and the COVID-19 pandemic on these leave laws.

Topics of discussion will include:

Best practices

Understanding how the ADA and FMLA intersect

How COVID-19 impacts leave obligations

“Real life” workplace scenarios

Date: 9/23/2020 - Time: 1:00-2:00 PM EDT  

Live attendance is eligible for 1 complimentary CLE credit

Click below to Register:

https://know.wolterskluwerlr.com/LP=2169?utm_campaign=2327_L%26E%20Webinar%2009%2F2020%20ADA%20FMLA%20COVID&utm_medium=email&utm_source=Eloqua&elqTrackId=7046B34E6262B14525C89C3BE5109DCA&elq=e1b3c90aee86431780f7191a03fca717&elqaid=26516&elqat=1&elqCampaignId=11712

Failing to comply with statutory requirements for filing a complaint and, or, notifying the correct party of the alleged act or omission is a fatal procedural defect

Seeking reinstatement and back pay following his dismissal from his position, Petitioner [Plaintiff] brought a CPLR Article 78 action asking Supreme Court to review the determination of the Board of Education [Board] [a] terminating his employment and [b] its denial of payment for [1] certain days that he alleged he had worked, [2] his accrued sick leave credits, and [3] his unused health care benefits.

 

The Board, contending that Plaintiff had not complied with the notice of claim requirements set out in Education Law §3813(1), moved to dismiss Plaintiff's petition. The Supreme Court granted the Board's motion, in effect denying Plaintiff's petition for failure to comply §3813(1) and dismissed the proceeding. Plaintiff appealed the court's ruling.

 

The Appellate Division, affirming the lower court's ruling, explaining that §3813[1] provides that a written verified claim upon which such action or special proceeding is founded must be presented to the governing body of the school district "within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment."

 

Citing Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, the Appellate Division, said a "failure to present a claim within the statutory time limitation or to notify the correct party, is a fatal defect."

 

While the Court of Appeals has held that where the school district has been sufficiently informed of the claim all that is required is substantial compliance with the statute regarding the degree of descriptive detail in a notice of claim, it has "nevertheless, always insisted that statutory requirements mandating notification to the proper public body or official must be fulfilled." Further, opined the Appellate Division, §3813[1]'s prerequisite is not satisfied by presenting such notice to any other individual or body and, moreover, "the statute permits no exception regardless of whether the Board had actual knowledge of the claim or failed to demonstrate actual prejudice."

 

Agreeing with the Supreme Court's finding that Plaintiff failed to present his purported notice of claim to the governing body, namely, the Board, the Appellate Division pointed out that Plaintiff's sending a letter setting out his claims to the School District's Superintendent did "not constitute service upon the Board."

 

The fact that the Board ultimately obtained actual knowledge of the letter from the Superintendent's office did not satisfy the mandates set out in §3813[1] and Plaintiff failed to submit an affidavit of service or any other evidence to demonstrate that he had, in fact, served or presented his letter to the Board.

 

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2020/2020_04839.htm

 

New York State registered voters concerned about risk or exposure to COVID-19 may request an absentee ballot for the November 3, 2020 election

New York State's Governor Andrew M. Cuomo issued an Executive Order permitting any New York State registered voter concerned about risk or exposure to COVID-19 to request an absentee ballot.

 

On September 1, 2020, Governor Andrew M. Cuomo announced the launch of New York's Absentee Ballot Portal where voters can directly request an absentee ballot for the November 3, 2020 election. The Governor's Executive Order to permits any voter concerned about risk or exposure to COVID during the ongoing pandemic to request an absentee ballot.   

The Governor also issued an Executive Order to bolster and support New Yorkers' right to vote. The order requires county boards of elections to take concrete steps to inform voters of upcoming deadlines, be prepared for upcoming elections and help ensure absentee ballots can be used in all elections.

All Registered New York State Voters Can Request an Absentee Ballot Here