Author: MainStaff

Reminder: Home Care Providers cannot test for Marijuana Use, in Almost all Cases 

Posted on | by MainStaff

Given the recent legalization of recreational marijuana use in New York State, and the regular application of drug tests in the home care industry, it is imperative for employers to understand the limitations of their ability to screen and test for marijuana use.

The Marijuana Regulation and Taxation Act (“MRTA”) amended Section 201-d of the New York Labor Law – which prohibits discrimination by an employer against an employee because of certain lawful outside work activities – to include protections for recreational cannabis use. As such, employers are now prohibited from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and where use does not involve the employer’s equipment or property. Under the MRTA, employers cannot take adverse action against employees for their use of legal cannabis outside of the workplace and outside of working hours work hours, except where: (a) an employer is required to take such action by state or federal law; (b) the employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or (c) the employee, while working, manifests specific articulable symptoms of impairment that either decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a health and safe workplace.

We highlight below several Q&As from the New York Department of Labor guidance for employer’s

knowledge:

  • Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.
  • Can an employer drug test an employee if federal law allows for drug testing? No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)
  • Can employers require that employees promise or agree not to use cannabis as a condition of employment? No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.



  • Are existing policies prohibiting use permitted? No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law
  • Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.

If you have any questions about this article, or need assistance in preparing lawful marijuana use policies for your workforce, please contact us.

It’s not just the Minimum Wage that is Increasing. Effective December 31, Certain Exempt Employees will need to receive a Salary Increase in order to Maintain their Overtime Exempt Status.

Posted on | by MainStaff

As a reminder, effective Dec. 31, 2022, the minimum wage for all industries in upstate New York will increase from $13.20 to $14.20 per hour. The minimum wage for employees working in New York City, Nassau, Suffolk and Westchester counties remains unchanged at $15.00 per hour.  An increase to the salary threshold for employees who are classified as exempt under New York’s executive and administrative exemptions will also increase from $990 to $1064.25 per week (inclusive of board, lodging and other allowances and facilities) in upstate New York effective Dec. 31, 2022.  Historically, the exempt salary threshold has been 75 times the minimum wage rate. There is no proposed increase to the salary threshold for exempt executive and administrative employees working in New York City, Nassau, Suffolk and Westchester counties, whose threshold is currently at $1,125 per week. As a reminder, New York State does not establish a minimum salary threshold to qualify for the professional exemption. Thus, the federal threshold of $684.00 per week remains applicable for the professional exemption across New York State, and into 2023. 

Employers with exempt employees under the administrative or professional exemption, whose salaries will not satisfy these minimum salary thresholds after December 30th are reminded that, to preserve the overtime exemption for these employees, they will need to increase the salary as of December 31, 2023.

If you have any questions about these changes, please do not hesitate to reach out.

Merger and Acquisition Considerations for Healthcare Providers

Posted on | by MainStaff

As the year comes to a close and operators continue seeking ways to grow through acquisitions and capitalize on some of the COVID relief to grow their businesses, we provide this article and overview of the key issues to consider in corporate transactions.

While mergers and acquisitions present considerable potential benefit, they can also present substantial compliance risks. Key regulatory and employment law considerations include:

  • Regulatory considerations. In home care, a license does not “transfer” with the sale of stock or membership interests of an organization. Thus, the duration of any change of ownership process should be considered, as well as the practical operational issues related to the business as the buyer is waiting for the license transfer process to be completed. Who will run the business until the change of ownership is complete, and what protections will the seller have while the license is still under their name from any liabilities that the buyer-operator may incur? These are important issues to address before signing off on a transaction.
  • Implications of federal, state and local laws applicable to the specific type of service being provided by the seller. In home care, wage parity is a major financial and operational burden that, upstate or out-of-state buyers should carefully consider and analyze before undertaking the acquisition of a downstate entity.  
  • Proper classification of workers that qualify as exempt or independent contractors, especially sales personnel. Depending on the nature of the transaction, wage and hour issues that exist with the seller entity could be deemed assumed, or “inherited,” by the surviving or buyer entity. Thus, these issues should be carefully reviewed to ensure the buyer is not buying a liability. Further, in healthcare generally, 1099 relationships with marketing and business development professionals could carry significant antikickback violations that the buyer might not wish to assume.
  • The status of the license, if any, or contracts for services that the seller holds. The value of a business or an asset for licensed providers depends in large part on the contracts and licenses that the business holds. Thus, a buyer will want to ensure that the license or contract is “secure” with the seller. Did the seller have a bad survey recently that could result in revocation proceedings? Is the seller a CDPAP FI that did not receive the “lead” FI award and, thus, will have to cease operations at one point? Is the seller currently under investigation by regulators for fraud or other serious issues that could result in asset diminution? These are all issues that should be considered by a buyer.
  • Inclusion of non-discretionary bonuses when calculating overtime. For a bonus to qualify as discretionary, three key standards must be met: the employer has the sole discretion in determining whether to pay the bonus; the employer has the sole discretion in determining the amount of the bonus; and the bonus payment is not made according to any prior contract, agreement or promise.
  • Billing errors. If the seller bills any government payors, a prudent buyer will conduct a review of the claims submitted and paid, as well as claims submission process, to assess the level, if any, of noncompliance with federal, state or contractual billing requirements. Depending on the structure of the transaction, regulators, like the Attorney General or OMIG, may seek recoupment of wrongfully paid claims against a third-party buyer.
  • Successorship obligations when acquiring a unionized workforce. If a purchaser is deemed to be a successor, the purchaser is obligated to recognize and bargain with the union representing the seller’s employees. Therefore, the obligations and costs of the union contract must be carefully assessed.
  • Immigration employment issues and associated I-9 obligations. Does the seller retain all the documentation necessary to comply with immigration laws? Common problems include incomplete or fraudulent documents, failure to retain documents, and failure to track expiration dates, among others.
  • Employee background check obligations and prohibitions. Employers must meet specific obligations at three different stages: before a background check is requested; before “adverse” action is taken based on a background check; and after adverse action is taken based a background check. In addition, exclusion checks in the healthcare field have to be conducted on staff as a condition of billing for such staff services. The seller’s procedures in regards to background checks should be a subject of due diligence. 
  • Affordable Care Act requirements and the penalties associated with non-compliance. Under the Act, employers with 50 or more full-time employees, or with a part-time employee equivalent of 50 full-time employees, must offer affordable minimum-value health insurance to employees working 30 or more hours per week. Employers failing to comply must pay considerable penalties.
  • Federal and state tax consequences of “Golden Parachute” arrangements. For example, such payments often are not deductible by the corporation and are subject to an excise tax on the recipient.
  • Federal and state Worker Adjustment and Retraining Notice (WARN) obligations. Generally, employers with 100 or more employees who work more than 20 hours per week must assess whether compliance with the federal WARN Act is required relative to any certain job-reduction action. The same assessment must be made concerning compliance with the New York State WARN Act.
  • OSHA COVID prevention and mitigation requirements. OSHA’s enforcement of Covid and non-Covid related workplace hazards remains robust. Employers must have in place a Covid-19 prevention and mitigation policy, and that policy must be distributed to employees.