Newsletters

Legally Speaking, Vol. 1, Issue 1

May 11, 2021
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Welcome to our first edition of Gross Shuman's new client alert newsletter.

We hope you find the material in this newsletter informative. We are proud to have been partnering with our clients to deliver legal services in Western New York for more than 60 years. Through collaboration, creativity and technology, our talented team of lawyers and staff craft solutions to the myriad of legal issues that our clients often face in this constantly changing world.

Whether its business counseling, litigation, real estate, estate planning, employment, Covid-19 or any other legal matter, we are persistent and passionate in our commitment to efficiently deliver innovative, strategic and practical solutions for all of your legal needs. Simply put, we strive to exceed your expectations.

Our firm and several of our attorneys have been recognized by our peers for excellence in the practice of law, having been named to Best Lawyers " Best Law Firms", Best Lawyers in America, Western New York Legal Elite, and Super Lawyers (Upstate New York).

Whether you are a past, present, or future client of the firm, we are honored to have the opportunity to be your attorneys. Thank you for reading and be well.

Dave

CLIENT ALERT

FEMA Offering Reimbursement for COVID-related Funeral Expenses

The Federal Emergency Management Agency (FEMA) is offering reimbursement for funeral expenses related to individuals whose deaths are COVID-related.

The program is limited to funerals for those who died after January 20, 2020.

Other requirements outlined in the policy include:

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COMMERCIAL REAL ESTATE LAW

What's Next in Commercial Real Estate?

By Nicholas J. Ingrassia

Last month, Gross Shuman P.C. attorney Nick Ingrassia hosted a CLE on Commercial Real Estate in the wake of the COVID-19 pandemic.

The hour-long presentation covered a wide-range of topics of interest to landlords, tenants and investors.

If you were unable to attend the CLE, we are happy to share a summary of the key topics Mr. Ingrassia covered.

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LABOR & EMPLOYMENT LAW

Can New York Employers Mandate Vaccinations?


By: B. Kevin Burke Jr.

With the COVID-19 vaccine now available to virtually every American age 16 and older, private sector employers have focused on two questions. First, may a private sector employer make it mandatory for employees to receive the COVID-19 vaccine? Second, may an employer in New York State terminate an employee who refuses to be vaccinated?

The short answers are “yes” and “yes.” But a well-advised private sector employer will take a more nuanced approached to this issue.

At-Will Employment
New York State is an at-will employment state. That means an employer can terminate an employee at any time, for any reason, provided that reason is not unlawful. An employer in New York may lawfully mandate vaccination. But there are exceptions.

As with most COVID-19-related questions, there is little settled jurisprudence in this area as of this writing. However, Title VII of the Civil Rights Act and the Americans with Disabilities Act (ADA), combined with New York’s Human Rights Laws, still govern in this area. In most cases, unless an employee presents a compelling health- or disability-related reason for an exemption, and can demonstrate that she can perform her job without putting others at risk through an accommodation exempting her from vaccination, a court is likely to find it an “undue hardship” to allow that employee to remain unvaccinated
.
The U.S. Equal Employment Opportunity Commission (EEOC) issued guidelines that said, in part:

“Employers may mandate a COVID-19 vaccine only if they do so in accordance with applicable federal, state, or local laws, including the EEO laws enforced by the EEOC.”

These guidelines suggest that an employer may need to engage in a “direct threat” analysis. To meet this standard, the EEOC explains that an employer must have a reasonable belief, based on objective evidence, that the employee will pose a “direct threat” to the health or safety of her- or himself or other employees in the workplace. In performing this analysis, an employer must constrain its questioning of an employee to “job-related” questions which are “consistent with business necessity.” 

Don’t React, Research
In most cases, employers have invested time, money and resources into hiring and training employees. They are valuable members of your team. While it might be instinctive to terminate someone who refuses to follow a policy, that reactionary response could be costly in the long run. It may cost you a good employee and hurt productivity as you hire and train a replacement. It could also impact organizational morale. You likely just fired not only a coworker, but a person other employees were friends with. The trickledown effect from a single firing can cause a ripple effect felt throughout the organization.

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CROSS-BORDER LAW

The Border May Be Closed, But Business is Booming

By: David H. Alexander

When the United States-Canadian border was closed to all non-essential business on March 21, 2020, few people imagined a scenario where the closure would last longer than a few months. In the early days of the pandemic, the focus was on "fifteen days to flatten the curve." Given the vital economic importance of cross-border tourism, many believed the border would reopen by the summer of 2020.

Fourteen months later, the border remains closed to all non-essential travel with no clear end in sight. When asked recently, Canadian Prime Minister Justin Truedeau refused to commit to a time frame to reopen the border in 2021.

The important point to note is that the border closing is focused on non-essential travel. Here in Buffalo, commercial trucks continue to cross the Peace Bridge in both directions. Those with cross-border business interests can apply for a work permit. I myself have one that allows me to cross the border and travel to our law office in Burlington, Ontario. The reality is, although it has absolutely slowed from its prepandemic numbers, cross-border business continues.

The Milwaukee Business Journal reported that pre-pandemic, there were roughly 400,000 border crossings daily. Today, that number has dropped to 8,000. The good news is, as they reported, "business crossings have remained relativerly the same. Despite the (overall) drop, essential travel continues to flow."

Roughly $2 billion in traded is conducted daily between the United States and Canada. To put that in perspective, in the last year (during the pandemic) Canada purchased more goods from the United States than they did from China, the U.K. and Japan combined.

One area to consider is commercial real estate transactions. A recent report found that despite being down 71 percent in the third quarter of 2020, foreign acquisitions in commercial real estate in the United States still reached $3.5 billion.

While that includes investment from place like China and Germany, even in the midst of the pandemic and the border closing, according to data compiled by Real Capital Analytics, Canada remains the top foreign investor in U.S. commercial real estate, accounting for 54.2 percent of all transactions. We work closely with many Canadian clients on the purchase, leasing and sale of U.S. properties, and that work has continued during the COVID-19 pandemic.

The takeaway for now is this: we advise our clients to not panic. Much of the media reports about the crushing impact of the border closure are talking about the impact on small business/ tourism in towns and cities near the border. While those issues are real, and are having a major impact, that doesn't mean commercial business is dead, in fact, far from it.

There are deals to be made for Canadian businesses and entrepreneurs looking to expand into the United States, and we are here to help. Call me anytime, 716-854-4300 ext. 216 or email me at dalexander@gross-shuman.com

Welcome to the firm Joseph de Perio Nicholas Pusateri

We were fortunate enough to add two outstanding young attorneys to our firm during the fourth quarter of 2020. Please join us in welcoming them to the Gross Shuman P.C. team.

Attorneys Nicholas Pusateri and Joseph de Perio joined the firm as members of our Business and Corporate Law Practice Group.

Mr. Pusateri has a background in business and corporate law matters, including business succession planning, various business transactions, regulatory compliance, and economic development.

He has twice been named to the Super Lawyers Rising Stars list. He was also named to Best Lawyers' 2020 list of “Ones to Watch.”

Mr. Pusateri is admitted to practice in both New York and Florida.

Mr. de Perio earned his JD from Albany Law School in 2019, where he was the recipient of the Pro Bono Gold Public Service Award and where he served as Treasurer of the Asian Pacific American Law Student Association.

He began his career as an associate in an Albany law firm where he focused his practice on assisting corporate clients with a wide-range of business matters.

You can reach Nick and Joe via their contact information below:

Nick: 716-854-4300 ext. 251 npusateri@gross-shuman.com
Joe: 716-854-4300 ext. 265 jdeperio@gross-shuman.com

PRACTICE PROFILE

Everyone has an estate

One common misconception about "Estate Planning" is that it is reserved for the wealthiest people. That is due, in part, to the use of the word estate, which is commonly used to refer to a large, sprawling property.

In reality your estate is, in a broad sense, your net worth. The collective worth of your cash, investments, real estate, possessions and intellectual property. Everyone has an estate, and your estate needs protecting.

Proper planning can serve many purposes including ensuring your assets are distributed as you would like, minimizing any potential tax liabilities, and easing the burden on your family.

At Gross Shuman, we assist clients with everything from the basic three elements of an estate plan --a will, health care proxy and power of attorney--all the way up to the complex planning required to protect multi-million dollar estates. Whether you want to make sure your children are taken care of, you have a stake in a business to protect, or you just want to make sure you control your health care decisions, we are here to help.

We work with our clients to make sure their lifetime of work is protected and their families are in the best possible position should they become incapacitated or die.

To that last point, the number one reason people don't have any type of estate plan is they are uncomfortable planning for their own death. We get that, but the reality is, each of us will eventually die, and when that day comes, don't you want to know that you properly planned for those left behind?

Click on the button below to visit our estate planning page on our website and learn more about what we can do to help, then give us a call.

To Learn More

With 21 attorneys covering 15 practice areas, Gross Shuman has the experience you need, and the size to know you will never become just another number. If you are a current client, we thank you. If you aren't, we invite you to visit our website, and then give us a call to discuss your legal needs.