On March 7, 2020, Gov. Andrew Cuomo used his executive powers to announce Executive Order 202, placing New York under a State of Emergency based on the COVID-19 pandemic. The order was extended and was scheduled to expire on July 5, 2021. However, based on vaccination and statistical rates, the governor lifted the State of Emergency for New York on June 24, 2021.
The New York Workers’ Compensation Board provided guidance during this period of time (March 7, 2020 forward) on COVID-19 procedures. On June 29, 2021, they issued notification of certain changes in light of the declaration of the end of the State of Emergency. These are provided on the New York State Workers’ Compensation Board website under COVID-19 updates.
A further update was sent by the Board on August 13, 2021 providing additional details on the issue of Labor Market Attachment. The Board specifically referenced Workforce 1, a job placement agency generally located in the New York City area.
The Labor Market Attachment is an available defense for the employer/carrier when a claimant is deemed partially disabled from any and all work. Workers’ compensation benefits are considered wage replacement benefits, meaning that a claimant is only entitled to indemnity benefits if he or she is out of work secondary to the work injury based on medical restrictions.
The workers’ compensation benefits permitted the carrier to raise the issue beginning on August 16, 2021. This is generally similar to the argument that an RFA-2 is required to put a claimant on notice before adjudication of an issue occurs. This doesn’t mean that the employer and carrier cannot begin to put their defense in place. Additionally, the websites for ACCESS-VR and similar locations across the state are offering job placement appointments, applications, and lists of job openings at this time.
Success in achieving a defense requires planning, preparation, and presentation. Please feel free to contact us to ensure that you are making the best efforts to achieve a favorable legal result.
If you have any questions about these changes or how they impact your business, please contact: