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MEDIATION – IT CAN WORK UNDER THE RIGHT CIRCUMSTANCES

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By: Chaim J. Jaffe, Esq.

Often times, clients ask why the litigation process is so lengthy. The answer is not always a simple one. The time-frame within which an action is judicially resolved is a function of the court’s caseload, the complexity of the matter being litigated and the lawyers’ schedules. There are, however, avenues available to litigants in certain circumstances that will allow them to resolve their disputes quicker and, in many cases, more economically. The two most recognized methods of alternative dispute resolution (“ADR”) are mediation and arbitration. This article will focus on the mediation process.

In many instances, parties to an agreement can contractually agree to submit any dispute that may arise to one or more forms of ADR. Parties’ whose claims are not controlled by a contract can similarly agree to utilize the ADR process prior to or subsequent to the commencement of a formal court litigated matter. Finally, there are circumstances under which a judge presiding over a court litigated matter can “order” the parties to participate in the ADR process.

Mediation is usually the first step in the ADR process, although parties can agree to skip this option and proceed directly to arbitration. Parties who agree to submit their dispute to mediation will agree who the neutral mediator will be. This individual can be an attorney whom counsel for the litigants believes is best qualified to impartially provide an opinion as to the merits of the underlying dispute. In many written contracts, the parties will agree to select the mediator from one of several nationally respected mediation companies.

Procedurally, the mediation process is relatively straight forward. Once the parties agree on a neutral mediator, the parties will enter into a written mediation agreement with the mediator. In addition to the parties usually agreeing to equally bear the mediator’s fee, the parties will be required to agree to, among other things, the confidentiality of the proceeding, that nothing disclosed during the mediation sessions will be used at trial (if the mediation process is unsuccessful) and that the mediator cannot be called by either party as a witness if the dispute proceeds to a court supervised process.

Prior to the commencement of the mediation session, both parties will usually be required to provide the mediator with a confidential written mediation statement, the length of which depends on the complexity of the matter and the mediator’s instructions. This pre-hearing submission will usually include a description of the parties, the underlying facts and circumstances of the dispute, the legal issues involved, the parties’ respective strengths and weaknesses, the resolution of specific issues by the mediator that the parties believe would be beneficial in resolving the entire dispute and a history of any previous settlement efforts undertaken by the parties.

The mediation session can be held wherever the parties agree. Sometimes it can be held at the mediator’s office or at the office of the attorney for one of the litigants. It is not uncommon at the beginning of a mediation session for the mediator to gather the parties in the same room for purposes of reviewing the “ground rules” and for allowing each party to make some opening remarks. At the conclusion of this “joint session”, the mediator will separate the parties into different rooms. The mediator will then conference separately with each party. The amount of time that the mediator conferences with each party can vary and can often be lengthy. It is not uncommon for parties to wonder why the mediator is spending so much time conferencing with the opposing side. It is during these private conferences that the mediator “goes to work”. The mediator, needing to be very good listener, will allow the participants to tell their “side of the story”. The mediator will provide the litigants with his/her view of the case, including an opinion as to the legal issues involved and the monetary value of the claim being asserted, where money damages are involved. This process continues until (a) the conclusion of the agreed upon time for the mediation session, (b) the parties have reached a resolution, or (c) the mediator and the parties agree that a resolution cannot be achieved.

It is important to emphasize that without express permission from a party, the mediator will not share what was discussed during the private conference with the opposing side. The participants to the mediation need to feel comfortable discussing the matter openly and freely with the mediator. Simply stated, each individual in mediation needs to gain the mediator’s trust and vice versa. Once that trust is established, the hope is that the parties will be more amenable to looking at their dispute from a different perspective.

What makes mediation an attractive alternative to the court system is that the process is not binding. The parties are free to accept or reject the mediator’s recommendation. In some written agreements, mediation might be a required precursor to proceeding to a binding arbitration process. Where no written agreement controls the dispute, the parties are free to proceed with commencing a formal court action or can agree to submit their claim to binding arbitration.

Mediation can be a very productive ADR mechanism, the results of which depend on the effectiveness of the selected mediator and the parties’ willingness and desire to resolve their dispute quicker and more economically.

This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken.

The Importance of Estate Planning

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By: Scott M. Ceurvels, Esq.

New York was recently ranked the worst state to die in without a Will in a study published by Caring.com. The Caring.com 2023 Estate Planning Study considered factors pertaining to the probate process, guardianship, taxes and various other aspects of estate distribution to establish this ranking, all of which is described more fully and can be read at the link above.

As the 2023 Estate Planning Study points out, and various other sources corroborate, it is estimated that only one-third (1/3) of Americans have a Will in place overall. That number further declines among certain demographics, with less than one-fourth (1/4) of Black and Hispanic Americans having a Will. There are numerous reasons why so many Americans have not executed a Will of their own, from the number or value of assets one does (or doesn’t) have to being “too young” or even assumptions surrounding what happens “automatically” upon one’s death without a Will, just to name a few.

Regardless of the reason, the fact remains that well over half of Americans don’t have a Will in effect and, upon their death, will be reliant on State law to direct how their assets are distributed. Although not covered directly in the studies referenced above, another aspect of estate planning that is frequently addressed in conjunction with Wills are financial and health care planning documents that can be utilized to put some of the most sensitive and personal decisions in the hands of a trusted family member or friend in the event of a serious injury or illness that results in your incapacity.

What Happens if I Die in New York Without a Will?

Generally speaking, if you die without a Will in New York, any assets held in your individual name (“Probate Assets”) will be distributed in accordance with the State intestacy laws. This excludes assets that pass by beneficiary designation and certain jointly-owned property (“Non-Probate Assets”).

In New York, the State intestacy law provides that:

  • If you are survived by a spouse and no children/grandchildren/etc., all of your Probate Assets will be inherited by your surviving spouse.
  • If you are survived by a spouse and children/grandchildren/etc., the first $50,000 of Probate Assets will be inherited by your surviving spouse, and half of any remaining assets will go to your surviving spouse and the other half to your surviving children, grandchildren, etc.
  • If you are not survived by a spouse but are survived by children/grandchildren/etc., all of your Probate Assets will be inherited by such children/grandchildren/etc.
  • If you are not survived by a spouse or children, all of your Probate Assets will instead be inherited by your surviving parent(s).
  • If you are not survived by either of your parents, then your Probate Assets will be inherited by any surviving siblings of yours, and so on.

While there are a number of tax, asset protection, business succession and other more complex considerations that often drive estate planning, it is equally as important for the simple reason of ensuring that trusted individuals of your choice are designated to make your healthcare and financial decisions in the event you are unable to do so and that your assets are inherited in accordance with your wishes upon your death.

If you do not have a Will or other estate planning documents in place, or have not updated or reviewed your estate planning documents recently, please contact Scott Ceurvels or the attorney at our firm with whom you work.

This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken.

Working Group Supporting NY Farmers

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Jeff Fetter has been appointed to a Task Force in the support of New York farmers.   “The emphasis will be on administrative actions that can be taken by the Governor and state agencies to provide an immediate and timely response to important issues around supporting and expanding food production in New York.”

Read the complete story at:  Hochul Supports NY Farmers

Kayla Sharson, Esq. Joins Our Team

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Welcome Kayla Sharshon, Esq.

We are pleased to welcome Kayla C. Sharshon, Esq.

Kayla is part of the Firm’s Estate Planning and Wealth Preservation Group.  Read about Kayla:  Kayla’s Biography

New York Forward – Compliance Tips for Small Businesses

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By Melissa L. Green, Esq.

In March of this year, all non-essential businesses in New York State were closed in an effort to slow the spread of coronavirus disease 2019 (“COVID-19”). New York State has now begun to reopen in phases under the New York Forward Plan (“NY Forward”), and the State has placed requirements and obligations on businesses that are resuming in-person operations. All regions in New York have now begun reopening. Five regions (North Country, Finger Lakes, Central NY, Mohawk Valley, and Southern Tier) entered Phase Three on or about June 12, 2020.

In order for a business to resume (or for essential businesses, continue) in-person services, the State has placed specific obligations on employers. Under NY Forward employers must: 1) read and affirm the guidelines specific to their industry, and 2) prepare a written Business Safety Plan. Failure to comply with the State’s requirements may expose business owners to liability, fines, or investigations. Business owners should familiarize themselves with the NY Forward guidelines specific to their industry, and understand the obligations imposed on them, in order to avoid adverse effects and keep employees and visitors safe.

The State has released guidelines for industries in Phases 1 through 3, and “State Wide Guidelines” for miscellaneous industries. Guidelines for Phase 4 industries, which will include Arts/Entertainment/Recreation and Education, have not yet been released. Thus far, the State has released guidelines for the following industries:

Phase 1 – Construction; Agriculture, Forestry, Fishing, and Hunting; Retail Trade; Manufacturing; Wholesale Trade; and Higher Education Research

Phase 2 – Offices; Real Estate; Essential and Phase 2 In-Store Retail; Vehicle Sales, Leases, and Rentals; Retail Rental, Repair, and Cleaning; Commercial Building Management; Hair Salons and Barbershops; Outdoor and Take-Out/Delivery Food Services

Phase 3 – Food Services (In-Person); Personal Care

State Wide Guidelines – Child Care and Day Camps; Lake and Ocean Beaches; Religious and Funeral Services; Racing Activities; Dentistry; Auto Racing; Professional Sports Training Facilities; and Public Transportation

Business owners should read the State guidelines for their industry, and are required to affirm that they have read them. The affirmation can be found at https://forms.ny.gov/s3/ny-forward-affirmation. The guidelines vary by industry, and include requirements, guidance, and suggestions for business owners. A common requirement across industries is the requirement to screen employees and, in some instances visitors/clients, for symptoms of COVID-19. The “Office” industry guidance specifically requires that business owners screen employees daily to determine if they are or have experienced symptoms, have been tested and/or diagnosed, and/or have been in close contact with someone who has experienced symptoms or been diagnosed. Business owners may also elect to conduct temperature checks on employees and/or visitors/clients/customers, but may not keep health data (i.e., the result of temperature screenings). Employers should also encourage employees to notify the employer right away if the employee begins experiencing symptoms. Further, employers should be prepared to isolate employees who begin experiencing symptoms and cannot be immediately removed from the work place.

The NY Forward guidelines for all industries require that employers notify the local health department if any employee tests positive for COVID-19, and work with the health department in contact tracing efforts. To that end, the State further recommends that employers track employee contacts with other employees, customers, visitors, etc., in order to better assist in contact tracing efforts. The NY Forward guidelines also require, among other things, that employers to maintain a social distance of at least 6 ft. between all people, require masks at all times when social distancing is not possible, decrease in person interactions wherever possible, minimize or eliminate shared equipment and items, and clean high touch surfaces frequently.

Ensuring a proper supply of personal protective equipment (PPE), is imperative to employer operations. Employers must provide employees (and customers or clients if necessary) with masks and proper hand sanitizing materials. In certain industries and for certain tasks the employer may also be required to provide gloves and other PPE such as a face shield. Under current State Orders businesses have a right to refuse service to customers who refuse to wear a mask.

Two federal agencies, the US Centers for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA), have also released recommendations for reopening and operating businesses. Employers may mitigate potential liability by following the guidance of these federal agencies. Further, the NY Forward guidelines largely incorporate, and in some instances adopt, the CDC and OSHA guidelines. Unlike CDC and OSHA recommendations however, many of the State guidelines under NY Forward are required. Businesses who fail to comply with the NY Forward guidelines may be subject to fines, investigations, and potential civil liability. Local municipalities will reportedly be responsible for enforcing the guidelines, and the State has encouraged employees to report violations to the Department of Labor.

Additionally, businesses are required to prepare a Business Safety Plan. The State’s Business Safety Plan template can be found at: https://ocfs.ny.gov/main/news/2020/COVID-2020Jun08-Guidance-Reopening-Plan-Template.pdf. Alternatively, business owners may elect to prepare their own Business Safety Plan, using the State template for guidance. The Safety Plan need not be submitted to a State agency directly, but should be conspicuously posted in the workplace, and made available upon request (i.e., during an investigation). The Business Safety Plan template includes, but is not limited to, the following provisions:

People – ensure appropriate social distancing and minimize in-person capacity to the extent possible;

Places – ensure adequate supplies of and proper use of PPE and hygiene materials (i.e., hand washing or hand sanitizer stations), and make plans for communication (i.e., maintain a log of persons who have had close contact in the workplace for contact tracing purposes); and

Processes – ensure proper screening of employees, and a plan for contact tracing assistance and cleaning/disinfecting in the event someone who has access to the workplace tests positive.

As with much of the guidance regarding COVID-19, this is a rapidly evolving area of law and policy. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. If you have specific questions regarding reopening, compliance with State guidelines, or preparing a Business Safety Plan, we would be happy to assist you. For further information regarding your particular circumstances, or if you need legal assistance, reach out to your normal contact at the firm, or contact Melissa Green ([email protected]).

Paycheck Protection Program Flexibility Act

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By Melissa L. Green

On Friday, June 5, 2020, the President signed into law H.R. 7010 – The Paycheck Protection Program Flexibility Act (PPPFA). The PPPFA eases some of the requirements of the Paycheck Protection Program (PPA), which was included in the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) passed earlier this year. The PPPFA lowers the threshold for spending required on payroll expenses, increases the covered loan period, provides exceptions for businesses who are unable to rehire employees to qualify for full loan forgiveness, and sets a minimum term of 5 years for new borrowers. The changes to the PPP are summarized below.

CARES ActPPPFA
·   Covered Period – February 15, 2020 through June 30, 2020·   Covered Period – February 15, 2020 through December 31, 2020
·   Qualified expenses – must spend 75% on payroll, 25% on other qualified expenses, or be subject to a decrease in loan forgiveness ·   Qualified expenses – must spend at least 60% on payroll, 40% on other expenses, or no loan forgiveness
·   Term – maximum of 10 years·   Term – (for new borrowers) minimum of 5 years
·   Payroll Tax Delay – deferment of social security taxes available only until loan is forgiven ·   Payroll Tax Delay – deferment of social security taxes through December 31, 2020 (even if loan is forgiven before that date)
·   Maintenance of Employment Levels – must maintain full-time employment and salary levels, or risk proportionate reduction of forgiveness·   Maintenance of Employment Level – creates hardship exceptions if there is an inability to rehire, hire, or return to pre-COVID-19 employment levels
·   Payment Deferral Period – payments of principal/interest delayed for 6 months ·   Payment Deferral Period – payments deferred until lender receives forgiveness funds from the government, or, if no forgiveness application is submitted, deferred for 10 months following the end of the Covered Period

Under the CARES Act the Covered Period for a PPP loan begins on the date of origination, and ends 8 weeks later. This meant businesses had just 8 weeks to spend all of the loan funds and qualify for forgiveness. Under the PPPFA the Covered Period spans 24 weeks after the origination date, or through December 31, 2020 (whichever is earlier). There is nothing in the PPPFA which prevents a borrower from applying for forgiveness if they meet the requirements (i.e., spend the loan funds) sooner than 24 weeks.

The CARES Act required borrowers to spend 75% of loan funds on payroll expenses, and 25% on other qualified expenses in order to qualify for loan forgiveness. Borrowers who did not meet these requirements were subject to a reduction of the loan forgiveness amount. Under the PPPFA borrowers must spend 60% on payroll expenses and 40% on other qualified expenses, or the loan will not be forgiven. It has been pointed out that this new “cliff” scenario may cause hardship to borrowers, and Congress has indicated that the U.S. Small Business Association (SBA) will release additional guidelines that specify the proportional reduction of loan forgiveness still applies. However, the law as written does not allow for a proportional reduction.

The PPPFA establishes a minimum maturity time period of 5 years for new borrowers. Under the CARES Act the maximum maturity time period is 10 years. While the new 5 year minimum does not automatically apply to those who have already received PPP funds, the PPPFA specifies that borrowers and lenders may renegotiate the maturity date in light of the PPPFA.

PPP borrowers are eligible to defer payment of social security taxes for 2020, and repay such taxes at the end of 2021 and 2022 (paying 50% each year). Under the CARES Act the deferment period ends when the borrower’s loan is forgiven. The PPPFA extends the deferral period through December 31, 2020, for all borrowers, even if the loan is forgiven before that date.

Borrowers were required to maintain pre-COVID-19 employment and salary levels in order to qualify for forgiveness under the CARES Act. Specifically, the CARES Act required that any employees who were terminated after February 15, 2020, be rehired such that the borrower retained employment levels through the Covered Period. Later guidance on the CARES Act allowed employers to instead hire similarly situated individuals for the same position if they were unable to rehire certain employees. Similar rules are in place for the maintenance of employee pay rates. The PPPFA creates exceptions to the employment maintenance and salary requirement if the borrower can provide evidence that: 1) the borrower is unable to rehire individuals who were employees, and the borrower is unable to hire similarly qualified individuals; or 2) the borrower is unable to return to the same level of business activity due to compliance with requirements by various government agencies (i.e., Health and Human Services, Centers for Disease Control, and Occupational Safety and Health Administration) from March 1, 2020, through December 31, 2020, regarding standards for sanitation, social distancing, or any other worker or customer safety requirement related to COVID-19. This is great news for businesses such as restaurants and retailers who are unable to rehire at previous staff levels due to regulations that resulted in a decrease to the business’s customer base.

Finally, the PPPFA extends the payment deferral period. Under the CARES Act borrowers’ payments were deferred for 6 months. The PPPFA requires that payments be deferred until the lender receives forgiveness funds from the government. In the event that the borrower does not apply for loan forgiveness, then the deferral period is 10 months following the end of the Covered Period. As the government is unlikely to quickly process forgiveness applications and disburse funds to lenders, experts agree that most deferral periods will likely extend well beyond 6 months.

As discussed, the SBA is expected to release additional guidance regarding the PPP that is intended to provide clarity on the PPPFA. Businesses should continue to monitor the situation as legislation and agency guidance are rapidly evolving. This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. If you have specific questions regarding a PPP loan, application, or forgiveness, we would be happy to assist you. For further information regarding your particular circumstances, or if you need legal assistance, reach out to your normal contact at the firm, or contact Melissa Green ([email protected]).

Newsletters, blogs and articles of Scolaro Fetter Grizanti & McGough, P.C. are for informational purposes only and should not be relied upon as being legal advice.  Each situation has its own facts and circumstances and needs to be discussed with and/or analyzed by legal counsel.

New York State Fiscal Year 2021 Budget

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By: Melissa L. Green

On April 3, 2020, Governor Cuomo signed New York’s Fiscal Year 2021 Budget into law. The budget contains provisions that will impact businesses, including mandated paid sick leave. The law also provides the Governor and State Budget Director with the authority to revise the state’s fiscal plan throughout the coming fiscal year, as much remains uncertain in this volatile economic time. Notable tax provisions contained in the budget include: a new category for the Excelsior Tax Credit Program, prolonging the Hire-A-Vet Tax Credit Program, and a departure from recently enacted federal tax benefits. The budget also includes provisions which impact individual tax payers.

Paid Sick Leave

New York employers will soon be required to provide sick leave to employees. The temporary sick leave policies enacted in response to the COVID-19 pandemic were modified and made permanent. Employees begin accruing sick leave (at a rate of one hour per thirty hours worked) on September 30, 2020, but employers are not required to begin paying leave until January 1, 2021. Employer requirements are based on size and net income as follows:

EmployerYearly Requirements
Less than 4 employees with net income less than $1 million40 hours of unpaid sick leave
Less than 4 employees with net income greater than $1 million;
or greater than 4 but less than 100 Employees		40 hours of paid sick leave
100 or more employees56 hours of paid sick leave

Employers should refresh their policies and procedures to determine how they will comply with the law. Where an employer is already providing paid sick leave that meets the requirements, such policies may and should continue. Under the new law, employers are not required to pay unused sick leave upon termination of employment. However, employers should remember that New York State common law requires payment of sick leave upon termination, if it is the company’s existing policy to do so. Employers should notify employees of changes to sick leave policies, including how and when employees will accrue leave (annually or an on hourly basis) and pay upon termination. Employee policies regarding notice of sick leave and the minimum hours used should also be reviewed to ensure compliance with the new law.

Business Tax Credits

The Excelsior Tax Credit and Hire-A-Vet Programs were extended in the budget. Under the new category provided for in the Excelsior Tax Credit Program, employers with qualified “Green Projects” may be entitled to: a refundable Jobs Credit of 7.5% for new jobs, 5% for new capital investments, and 8% for qualifying research and development expenses. The Hire-A-Vet Tax Credit, which provides credit to employers equal to 10% of wages paid to a qualified veteran (up to $5,000) and 15% of wages paid to a disabled veteran (up to $15,000), was extended to include both the 2020 and 2021 hiring periods.

Recent federal legislation contained in the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, included provisions for business interest deductions (increase to 50%) and net operating loss (allowing net operating losses to be carried back from 2018, 2019, and 2020 for a period of five years, and eliminating the 80% utilization limit prior to 2021). The New York State Budget decouples from the CARES Act relief, preventing full realization of these benefits for New York State taxpayers.

Individual Income Taxes

In 2016, New York State began a phased rollout of decreasing middle class income taxes, which the Governor’s office projects will result in a “$4.2 billion in annual savings for six million filers by 2025.” Under the 2020 provisions individual income tax rates will be 6.09% for taxpayers in the $43,000-$161,550 income bracket, and 6.41% percent in the $161,550-$323,200 income bracket.

Several other provisions impact individual tax payers. First, the Long-Term Care Insurance credit was decreased to $1,500 (available for those with an adjusted gross income of less than $250,000). New York State also automated the process of electing the higher deduction allowing for the use of the standard deduction automatically where it is greater than allowable itemized deductions. Similarly, where the State has the information to calculate eligibility, entitled taxpayers will automatically receive the Earned Income Tax Credit.

Conclusion

New York State’s Fiscal Year 2021 Budget reflects the uncertainty of economic impact as New Yorkers continue to deal with the effects of COVID-19. The budget provides room to pivot as economic impacts continue to be realized and areas of continuing need are assessed. The mandated sick leave policies will benefit employees, but should be reviewed closely by employers to ensure compliance.

Unfortunately, proposed benefits for small businesses were not included in the final budget. Likewise decision to decouple from the CARES Act tax benefits will negatively impact New York taxpayers. However, some tax benefits continued or expanded including the availability of state tax credits for qualified “Green Projects” and certain jobs, and the multi-year rollout for middle income tax cuts. The new law also continued the phased rollout of decreasing income taxes for middle class New Yorkers.

This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. For additional legal assistance specific to your tax, business, or employment situation reach out to your usual contact at the firm, or contact Melissa Green, Esq. ([email protected]).

 

In Uncertain Times, Have Peace of Mind That Your Personal Plans Are in Place

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By: Gina M. Glover

Estate planning . . . It is one of those “to-dos” in life that is so easy to put off, even when the world isn’t turned upside down.  We all want “a plan,” but it never seems like the right time to tackle estate planning. And, let’s be honest, no one wants to think about their own death and what/who we will leave behind.  As trying as these times are with this current pandemic, the mortality rate from COVID-19 is low.  That being said, between the scare of COVID-19 and how the world has slowed down, it may be a good time to address your estate planning.  In fact, despite the stay-at-home order, it is easier than ever to facilitate the signing of important estate planning documents.  Governor Cuomo has issued an Executive Order permitting video execution of Wills, remote witnesses, as well as remote/video execution of powers of attorney, health care proxies, and other legal documents.  The Governor’s prior Executive Order 202.7 permitted notarization by video at this time in our state.  This means that clients can create, sign and update important estate planning documents without leaving the safety of their home.  In addition, the remote witnessing makes it so you do not have to let other people, who could be potential risks, into your home.  There are, of course, specific guidelines to follow in accordance with these executive orders.  While it’s not ideal, it does make safe and effective estate planning possible for those clients that would like to proceed at this time, rather than wait any longer. In reviewing your “estate plan,” remember that it’s more than just a will. You should be reviewing and updating your health care powers of attorney, your legal or financial powers of attorney, as well a living will. If you have these documents already, ensure that your appointed agents are up to date. If you do not have these documents in place, please consider doing so. If you have questions on any of these documents please let us know. Finally, remember that many of your assets may not pass under your will and despite what your will may say, these “non-probate” assets would be distributed pursuant to beneficiary designations or by nature of how you own the asset. These include your life insurance policies, retirement accounts as well as annuities – all of these pass by beneficiary designations which should be reviewed and updated as well.

If we can be of assistance to you in starting an estate plan or updating your present estate plan, please contact us.  We would be happy to meet with you ~ even if it is “remotely”.

Newsletters, blogs and articles of Scolaro Fetter Grizanti & McGough, P.C. are for informational purposes only and should not be relied upon as being legal advice.  Each situation has its own facts and circumstances and needs to be discussed with and/or analyzed by legal counsel.

Special Considerations for Migrant Farm Workers and COVID-19

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By: Melissa L. Green

Many farms, especially those involved in hand-picked and other vegetable and fruit operations regularly employ migrant farm workers to assist with planting, harvesting, and other agricultural needs. The world is responding to an outbreak of respiratory disease caused by a novel (new) coronavirus that has been named “SARS-CoV-2” and the disease it causes has been named coronavirus disease 2019 (“COVID-19”). This article addresses consideration for farm’s who employ workers that are not U.S. citizens, and that are housed onsite by the farm while employed.

     1.  H2-A visas – availability and changes to current protocol

Migrant farm workers working under H2-A Visas may still enter the U.S. in some circumstances, but their travel depends on current restrictions from both the U.S. and their home country. The U.S. is not presently issuing new H2-A Visas.

U.S. Citizenship and Immigration Services (“USCIS”) is temporarily allowing reproduced original signatures on benefit forms and documents. The reproduction must be a copy of the original and may include a scan, photocopy, fax, or similarly reproduced document. The State Department has further advised that it is reviewing these policies and others related to Migrant Farm workers and will update regularly.

The U.S. Department of Agriculture (“USDA”) is attempting to connect available workers (those whose current contracts are expiring) with farmers in need. Additional information can be found at: https://www.farmers.gov/manage/h2a.

          a.  Mexico

Effective March 20, 2002, through April 20, 2020, the U.S. has issued temporary travel restrictions which prohibit non-essential travel between the United States and Mexico. Individuals traveling to and from work, including those in the farming and agricultural industries are exempt from these restrictions. Mexican migrant farm workers who interviewed in person, and were approved for an H2-A Visa last year, may apply for a renewal this year without the need for an in person interview.

     2.  Safety concerns for employing and housing migrant farm workers

The United States Center for Disease Control (“CDC”), the United States Occupational Safety and Health Administration (OSHA), and other federal and state agencies have already begun issuing guidance on how to keep employees safe during the COVID-19 pandemic. The farm should take special precautions for workspaces and living quarters for workers as recommended by OSHA and other agencies.

          a.  CDC workplace guidance

The CDC recommends employers take steps to warn employees about the dangers of COVID-19, and to prevent the spread of illness. The CDC provides a variety of print resources to assist with these recommendations, which can be found here: https://www.cdc.gov/coronavirus/2019-ncov/communication/factsheets.html. Special recommendations include informing employees of the symptoms so that they can immediately report to their employer if they become ill, and informing employees of known ways to prevent the spread of illness (i.e., maintain a safe distance, wear personal protective equipment (“PPE”) such as face masks where appropriate, and encourage employees to wash hands).

          b.  OSHA workplace guidance

OSHA has released guidelines for employers based on the employee’s likelihood to contract COVID-19 at work. Many farms operate a number of agricultural operations that may require employees to have close contact with each other, or the public. Under the current OSHA guidelines, this would put a farm’s employees in the medium risk category of contracting COVID-19 while on the job.

For those in the medium risk category OSHA recommends using physical barriers to prevent contact between employees. Physical barriers include face/sneeze guards where appropriate. In the instance of agricultural work masks may be useful where sneeze guards or physical barriers between employees are not practical. OSHA also recommends minimizing face-to-face contact, removing those known to be ill where possible, and providing masks to those known to be ill in order to prevent the spread of illness. This means, at a minimum, anyone known to be ill should be wearing a mask if they will be exposed to other employees, but should be separated from other employees entirely as soon as possible.

         c.  Migrant farm worker housing

OSHA and the CDC have not provided guidance specifically on housing for migrant farm workers. However, farms should consider the following controls on housing in order to comply with other applicable recommendations from the CDC and OSHA. If all workers are housed in the same building an out building should be constructed to accommodate the potentially ill. Sick and well workers should not share restrooms, or other facilities, such as dining areas. If no separate space is available sick workers must be moved offsite to prevent infecting others. Sick workers should seek medical care, and should be encouraged follow the advice of their medical provider with regard to further treatment.

Conclusion

Many farms may encounter road blocks in obtaining assistance from migrant farm workers this season due to current national and international travel restrictions. If possible, farms should consider utilizing Mexican workers who were issued H2-A visas last year, and should seek additional advice about available workers from the USDA. Also, farms should be mindful of recommendations from OSHA, the CDC, and other agencies, in order to keep migrant farm workers safe and prevent the spread of COVID-19.

This article is intended to be for informational and discussion purposes only and is not to be construed as legal advice or as a legal opinion on which certain actions should or should not be taken. For additional legal assistance specific to your farm or business reach out to your usual contact at the firm, or contact Melissa Green ([email protected]).

 

 

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