Labor Market Attachment and the End of the COVID-19 State of Emergency in New York
The COVID-19 “State of Emergency” in New York State came to an end on Thursday, 6/24/21, with the expiration of Executive Order 202. This raises the question as to whether the Board policy that suspended the obligation of partially disabled claimants to demonstrate labor market attachment has ended as well. The Board’s original announcement declaring the policy stated that “[t]he Board will review this requirement upon the Governor’s declaration that the period of emergency is over.”
As of this writing, there has been no official announcement from the Board revoking the policy but we believe that even in the absence of an announcement from the Board that employers and carriers should raise the issue of labor market attachment in appropriate cases. With the State of Emergency over, the Board no longer has any legal basis to suspend the well-established requirement for partially disabled claimants to demonstrate labor market attachment.
The Board’s announcement suspending the requirement to demonstrate labor market attachment also noted that in any cases that were ready for classification and in which the employer or carrier raised the issue of labor market attachment, the matter would be adjourned until such time that the claimant would be able to demonstrate labor market attachment. We recommend that any employer or carrier with a case so adjourned should file an RFA-2 to request a hearing to address permanency and labor market attachment.
Anecdotally, our attorneys have heard from Law Judges in their hearings throughout the state that the judges are awaiting further guidance from the Board on how to proceed regarding the labor market attachment issue. Notwithstanding this, we recommend that employers and carriers begin pursuing the labor market attachment defense in cases where the claimant is receiving temporary partial disability benefits. Claimants should be sent work search questionnaires to determine if they are engaging in any labor market attachment activity. Employers and carriers should file RFA-2s with the Board to raise and pursue the labor market attachment defense.
Please do not hesitate to contact any of our attorneys for assistance.