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Patrick McCormick, Esq., CMM partner and head of the firm’s Litigation & Appeals practice, will be on the faculty of a CLE program entitled “Electronic Evidence Show and Tell: Admitting Social Media Evidence” sponsored by the Suffolk County Bar Association.  The program will include a live demonstration of the proper way to admit Facebook and other social media posts and pages, text messages, and emails into evidence at trial.  The faculty also includes Robert A. Cohen, Esq. and Hon James F. Quinn (Acting Supreme Court Justice, Suffolk County) and will be moderated by Hon. John J. Leo (Supreme Court Justice, Suffolk County).

The lunchtime program will take place in the District Court Jury Room at the Cohalan Court Complex in Central Islip on Wednesday, May 11 at 12:30 p.m.  To register, please visit https://www.scba.org

In 2015, the State of New York added “familial status” as a class of persons protected under state discrimination laws, prohibiting discrimination against pregnant employees and employees with minor children.  On May 4, 2016, the New York City Human Rights Law (“NYCHRL”) will add a new protected class that offers an even greater degree of protection.  The NYCHRL will be expanded to protect “caregivers” from employment discrimination based on one’s actual or perceived status as a “caregiver.”

As amended, the NYCHRL will add “caregivers” to the increasing number of classes already covered under the law, including age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, and citizenship status.  The NYCHRL defines the term “caregiver” as “a person who provides direct and ongoing care for a minor child or a care recipient.”  The NYCHRL stops short of defining what “direct and ongoing care” means, leaving employers without guidance until either the NYCHRL provides clarification or the courts interpret the meaning.  “Covered Relatives” are broadly defined to include the following disabled persons residing in the caregiver’s household: children (including adopted, foster, or otherwise), spouses, domestic partners, parents, siblings, grandchildren or grandparents, children or parents of the caregiver’s spouse or domestic partner, or any other individuals in a familial relationship with the caregiver.  Practically speaking, the amendment’s intertwining definitions provide that a “caregiver” includes any employee providing ongoing care for a minor, a disabled relative or a non-relative living in the caregiver’s house.

As with the other protected classes, extending legal coverage to caregivers prohibits employers from discriminating against caregivers with respect to job advertising, job applications, pre-employment inquiries, hiring, compensation, or the terms and conditions of employment.  While the employee must still be able to perform the essential functions of his or her job, caregivers cannot be terminated, demoted, or denied a promotion because of their status or perceived status as a caregiver.

The new amendment does not address whether employers have the right to request proof of an employee’s caregiver status and is silent on whether employers are obligated to provide caregivers with reasonable accommodations.  To the latter, it remains to be seen if the NYCHRL follows New York State’s lead as to “familial status” discrimination, where the employer is not required to accommodate the needs of the child or children, and is not required to grant time off for the parent because of a child’s needs, or to attend school meetings, concerts, sporting events, etc., as an accommodation.  The takeaway here is that employers should uniformly apply company policies and procedures to all employees, regardless of the employee’s class status.

NYCHRL guidance is expected to be released shortly before the amendment goes into effect on May 4, 2016.  To prepare, New York City employers should consider expanding their anti-discrimination policies, anti-harassment policies, and associated training materials to include caregivers.

If an agency such as a Town Board, Planning Board, or a Board of Zoning Appeals finds that an application before it may cause a substantial adverse impact on the environment, it is required by the State Environmental Quality Review Act (“SEQRA”) to adopt a positive declaration, and require preparation of a Draft Environmental Impact Statement (“DEIS”) before it may determine the merits of the application.  The immediate impact of such a determination on an applicant is that a final ruling on an application will be substantially delayed, and a great deal of money will be spent to prepare the DEIS.  Prior to 2003, the lower courts fairly uniformly held that the applicant cannot challenge a SEQRA positive declaration in a CPLR Article 78 Petition because the SEQRA determination of significance was but the initial step in the decision-making process, and therefore did not give rise to a justiciable controversy.

In 2003, the Court of Appeals, New York’s highest court, permitted an Article 78 challenge to a SEQRA positive declaration.  In Matter of Gordon v. Rush, 100 N.Y.2d 236 (2003), the Court established a two-part test to determine when a case is far enough along (“ripe”) to permit a court to resolve the controversy.  The Court held that a SEQRA positive declaration is ripe for judicial review when two requirements are satisfied. First, “the action must ‘impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process’” and second, “there must be a finding that the apparent harm inflicted by the action ‘may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party.’”  In Gordon v. Rush, a Town Board requested that the Department of Environmental Conservation serve as SEQRA lead agency, and the DEC did so.  The DEC adopted a SEQRA negative declaration (meaning that the application would not have any significant adverse impact on the environment) and approved a wetlands permit requested by a property owner.  The Town Board then declared itself lead agency, and issued a SEQRA positive declaration, requiring the property owner to prepare a DEIS before it would consider the request for a Town coastal erosion permit.  The property owner challenged the positive declaration, and the Court of Appeals upheld its right to do so.  The Court concluded that, pursuant to SEQRA’s regulations, when a SEQRA lead agency after coordinated review makes a SEQRA determination of significance, it is binding on all other involved agencies that also have approval authority over the project.  For that reason, the Town Board was without authority to require preparation of a DEIS.

Subsequent to Gordon v. Rush, there was some confusion amongst the lower courts.  Some held that the case was limited to its unique facts, and continued to hold that a SEQRA positive declaration could not be challenged in an Article 78.  Others, applying the two-part test in Gordon v. Rush, found that a SEQRA positive declaration could be challenged.  These courts found that the requirement that a DEIS be prepared “imposed an obligation,” and that the significant delay and costs which could not be recovered could not be prevented by further administrative action or steps by the applicant. Thus the two-part Gordon v. Rush test was met.

On March 31, 2016, in Ranco Sand and Stone Corp. v. Vecchio, the Court of Appeals clarified what was intended by its decision in Gordon v. Rush.  There, the property owner leased a parcel of land to a private school bus company that used it as a bus yard and trucking station. Although the parcel at all times was zoned residential, the Town had not enforced residential zoning requirements on Ranco. Nevertheless, in 2002, Ranco applied to rezone this parcel from residential to heavy industrial use so that the use would be made lawful.  The Town Board concluded that a SEQRA positive declaration was appropriate, and that a SEQRA DEIS must be prepared.

The lower courts concluded that the case was not ripe for adjudication because future actions by the Town Board could ameliorate harm to the property owner.  The Court of Appeals agreed with the property owner that the obligation to prepare a DEIS imposed by the positive declaration satisfied the first part of the two-part test established by Gordon v. Rush, but the property owner’s complaint about delay and costs that could not be recovered was insufficient to satisfy the second part of the test.  Such impacts arise every time there is a requirement that a DEIS be prepared, and to find them sufficient to satisfy the second part of the Gordon v. Rush test would render the second part of the test meaningless, the Court of Appeals ruled.

The Court of Appeals made clear that Gordon v. Rush did not “disrupt the understanding of appellate courts that a positive declaration imposing a DEIS requirement is usually not a final agency action, and is instead an initial step in the SEQRA process.”  Rather, Gordon v. Rush “stands for the proposition where the positive declaration appears unauthorized, it may be ripe for judicial review,” such as where the action is not subject to SEQRA in the first instance (because it is a Type II action), or, as in Gordon v. Rush, a prior negative declaration by a lead agency following coordinated review is binding on other involved agencies.

It is established that an agency may not deny an application based solely on community opposition.  The Court of Appeals decision in Ranco Sand and Stone Corp. v. Vecchio was fully supported by the facts – a report had been prepared by the Planning Director which in great detail set out all the adverse impacts from the precedent of legalizing the industrial use in the residentially zoned area of the Town.  Unfortunately, one unintended outcome of the decision may be that lead agencies, such as Town Boards consisting of elected officials, may conclude that enormous public opposition to a project is best addressed by issuing a SEQRA positive declaration, hoping that the delay and cost of preparing a DEIS will cause the application to go away before a determination on the merits must be made.  Should it be apparent that this is the result of the Court of Appeals decision in Ranco Sand and Stone Corp. v. Vecchio, the Court may have to revisit its ruling.  Until then, unless a lead agency acts without authority, a mere abuse of discretion that requires an applicant to prepare a DEIS will be beyond review by the courts.

By Christine Malafi

In today’s workplace, a great percentage of employees will request the ability to work from home for one reason or another, be it temporary or not. Having employees work from home is both an opportunity and a challenge for both the employer and the employee. Employers avoid having to find space for the employees to work from, and employees may be more satisfied and committed to their employers for the benefit of working from home.  However, both parties must pay attention to make sure that the “team” spirit and internal workplace dynamics don’t suffer.

It is strongly recommended that employers implement written policies on telecommuting so as to not create policies piecemeal, which can be confusing and risk being deemed discriminatory by employees. Policies should be tailored to the specific needs and abilities of employers. Consistency is the key to avoiding claims of unfairness or discrimination. Policies should address which classification of employees are permitted to telecommute (i.e., full-time or part-time employees) and how long the employee must be employed before a request may be considered (three or six months).

Written policies should also clarify who is responsible for providing the tools and equipment needed for the employee to work from home (if equipment is provided, the policy must mandate its return when employment ends) and who is responsible for maintaining it.  It is also important to consider the security of sensitive information that your employee may be taking from the office or accessing from home.  If the employee’s work includes handling confidential data, the employer should set guidelines about secure Internet access as well as how to store documents and electronics (i.e., in a locked filing cabinet).

Employers permitting or encouraging telecommuting should consider investing in good conferencing technology, as well as paying for travel costs associated with having employees “visit” the physical workplace from time to time.

The importance of accurate recording of all working time is enhanced with telecommuters.  To minimize the risk of wage and hour claims, employers must implement strict guidelines for timekeeping and time reporting for hourly employees working from home.  Keep in mind also that you, as the employer, may be responsible for injuries that occurred at a home workplace; while it is impossible for an employer to completely control the safety of an off-site location, employers may wish to set parameters, such as having the employee designate a limited area of the home for working or to work according to a set schedule.

Unless you are hiring an employee with the specific intent of having him or her work from home, employees requesting permission to work from home should be required to submit a written request to telecommute. Every employee should understand from your written policies that permission to work from home is not guaranteed, and may be withdrawn at any time in the employer’s sole discretion.

Even if you do not have a telecommuting policy or practice in place, and although employers are not legally obligated to allow employees to telecommute, there may be an obligation, if it does not create an undue hardship, to allow an employee to telecommute as a reasonable accommodation for an employee with a disability under the Americans with Disabilities Act (ADA).

If you have any questions about your telecommuting policy (or lack thereof), please contact us.

Joe Campolo was named a “King of Long Island” at an awards ceremony hosted by Star Network and Schneps Communications, the publishers of popular community newspapers throughout the region.  The awards program and networking expo honored prominent businessmen of Nassau and Suffolk Counties across a variety of industries.  The program, along with its sister “Queens” event, brought together elite business leaders for networking and celebration at Leonard’s Palazzo in Great Neck on April 12, 2016.

A carbon monoxide detector could have prevented the tragic death in February 2014 of Steven Nelson, an employee at Legal Seafoods at the Walt Whitman Shops in Huntington Station, who fell victim to poisonous fumes from a malfunctioning water heater pipe at the restaurant.  The tragedy prompted a recent amendment to the New York State Executive Law to require the Uniform Fire Prevention and Building Code to address carbon monoxide detection in commercial buildings.  The Uniform Code now requires the installation of carbon monoxide detectors in all restaurant and commercial properties in the state.   Previously, detectors were required in one- and two-family homes, condominiums, co-ops, and multiple dwelling units, but restaurants and commercial buildings were excluded.

The law applies to “existing commercial buildings,” which includes commercial buildings constructed prior to December 31, 2015.  A detection device is mandated in any commercial building that (i) contains any carbon monoxide source (including a garage), and/or (ii) is attached to a garage, and/or (iii) is attached to any other motor-vehicle-related occupancy.  The law requires a detection device in each story of a building or “detection zone” with the presence of a carbon monoxide source.  Unlike in the residential setting, a combination smoke alarm/carbon monoxide detector will not satisfy the new requirement for commercial buildings.  The law contains heightened compliance requirements for new construction after December 31, 2015, including hard-wiring carbon monoxide detection as part of the building’s fire monitoring system.

The “transition period” to comply with the new law runs through June 27, 2016.  However, commercial building owners are encouraged to comply with the new law—which will protect employees, customers, and everyone else who enters a commercial space—as soon as practicable.  The goal of the new law is to protect employees against potential hazards.  Employers who lease commercial space should consult with their landlords and review their leases to facilitate the installation of the carbon monoxide detectors to comply with the law.  Please contact us with any questions or concerns about compliance with this critical safety measure.

By Scott Middleton

New York’s Court of Appeals recently decided a case extending a doctor’s duty beyond that of his or her patient.  Doctors, under certain circumstances, may now be responsible for injuries caused by their patients to third parties.

In Davis v. South Nassau Communities Hospital, 2015 NY Slip Op. 09229, the plaintiff commenced an action for injuries caused by Lorraine Walsh.  Walsh’s vehicle crossed the center line of the roadway, striking the bus the plaintiff was driving.  The defendants in the case included the hospital and medical professionals from Island Medical Physicians, P.C.

Walsh had been administered Dilaudid (an opioid narcotic painkiller) and Ativan (a benzodiazepine drug).  She was discharged without being warned about the effects these drugs, individually and combined, would have on her ability to operate an automobile.  She was given the drugs at 11:00 a.m. and was discharged 90 minutes later.

The side effects of Ativan include sedation, dizziness, weakness, unsteadiness and disorientation.  Dilaudid is between two and eight times more powerful than morphine and contains warnings that include “may impair mental and/or physical ability needed to perform activities such as driving.”  Walsh was not advised of these warnings.

The plaintiff sought damages for injuries sustained as a result of the defendants’ medical malpractice.  The medical defendants countered by asserting that they did not owe plaintiff a duty of care inasmuch as the plaintiff was a third party to the treatment rendered to Walsh.

The court determined that a “critical consideration in determining whether a duty exists is whether the defendant’s relationship with either the tortfeasor or the plaintiff places defendant in the best position to protect against the risk of harm.”  The Court of Appeals found that under the circumstances, the defendants owed the plaintiff a duty to have warned Walsh that the medication they administered impaired her ability to safely operate an automobile.  In this instance “the defendants’ relationship with the tortfeasor placed them in the best position to protect against the risk of harm.”

It is important to note that medical professionals need not do more under this case than warn the patient of the dangers.  The case does not examine the need to assess if the patient can understand the warning.  That being said, a creative attorney will most assuredly try to extend this new duty even further.  Therefore, an assessment of a patient’s ability to comprehend the warning may be a reasonable consequence of this decision.

As Judge Stein pointed out in her dissent, this decision is directly opposite to the long-standing precedent that a physician’s duty of care does not extend beyond the patient to the community at large.

From this point forward, doctors and healthcare facilities will be well advised to warn patients about the effects of drugs on the ability to drive and perhaps to assess the patient’s ability to comprehend the warning.  As we know, plaintiffs’ attorneys will always be creative in looking for and finding the deep pocket.

Joe Campolo, Managing Partner at Campolo, Middleton & McCormick, LLP talks with LI News Radio 103.9 FM host Jay Oliver about tips for hiring employees.