Eleanor G. Jolley

Q: Can a one-size-fits-all separation agreement expose a company to risk? A: Yes, using a uniform separation agreement may be efficient, but it can create legal exposure if not carefully tailored. Below are key considerations that will help employers ensure their separation agreements are legally compliant.  1. Individuals Aged 40-plus Trigger Additional Requirements If the impacted individual is 40 years or older, the Older Workers Benefit Protection Act of 1990 (“the OWBPA”), which amended the Age Discrimination in Employment Act of 1967, applies. The OWBPA requires that a waiver be “knowing and voluntary,” which requires, at a minimum:  Clear, written, plain language Geared to the individual’s level of understanding, accounting for their level of comprehension and education No technical jargon or long, complex sentences No misleading statements or misinformation Explicit reference to the Age Discrimination in Employment Act in connection with rights or claims being waived No waiver of future rights or claims Recommendation to consult with an attorney before executing the agreement At least 21 days to consider (or 45 days if a group layoff) 7-day revocation period after signing the agreement Additional consideration (e.g., something of value) beyond what the individual is already owed Tips: The 7-day revocation period cannot be shortened. The employer should pay consideration until after the revocation period expires. The individual may sign before the 21 or 45-day time period but only if voluntary and without inducement. Final compensation, business expenses the employer owes the individual, or accrued paid time off benefits legally owed to the individual do not count as consideration. 2. Group Layoffs Involving At Least One  Employee Aged 40-plus Require Additional Disclosures For company layoffs through “an exit incentive program” or “other termination layoff program” consisting of two or more employees (where at least one is 40-plus), the OWBPA imposes additional requirements: The review period increases to 45 days. Employers must provide detailed disclosures containing: the decisional unit; eligibility factors and selection criteria; job titles and ages of all individuals in the decisional unit selected for layoff; job titles and ages of all individuals in the decisional unit not selected for layoff. Tips: These disclosure requirements are in addition to the OWBPA requirements for a knowing and voluntary waiver in No. 1. The decisional unit is the class, unit, or group of employees from which the employer chose who was or was not selected for the program. Careful consideration should be given to the OWBPA notice to ensure compliance with the applicable federal law.  3. State and Local Laws Where Employees Work Varies State laws and local ordinances have varying protected classifications in addition to those protected by federal law (e.g., sex, pregnancy, age, race, color, national origin, ancestry, religion, disability, genetic information).  For example, the Illinois Human Rights Act affords protection to individuals based on their marital status, arrest record, unfavorable military discharge, family responsibilities, and reproductive health decisions. In Michigan, individuals are afforded protection based on their marital status, height, and weight. Indeed, many states, such as California, Colorado, New York, and North Dakota offer protection for lawful, off-duty conduct. Other states afford protection for off-duty cannabis use, off-duty tobacco use, and political activity/speech. Employers should ensure the waiver/release addresses all applicable protected classes, which may be accomplished by a general catchall statement such as “all other classes protected under applicable state or local laws.” Certain states have enacted legislation governing separation agreements. The Illinois Workplace Transparency Act (the IWTA) requires valid, bargained-for consideration in exchange for a confidentiality provision separate from consideration supporting a waiver/release of claims. Under the IWTA, an employer may not unilaterally include a statement that confidentiality is the employee’s preference or include confidentiality provisions related to “future or prospective concerted activity related to workplace conditions.” The IWTA also requires safeguards for confidentiality provisions, including written agreements, voluntary preferences, notice of the right to consult counsel, and 21-day review/7-day revocation periods. New York has enacted similar legislation. States, such as Illinois, California, Colorado, Washington, New York, Maine, and Oregon limit the use of confidentiality and non-disparagement provisions to prevent individuals from concealing unlawful employment practices.  Consideration may be given to naming state and local laws to be included in the release/waiver, in addition to the typical anti-discrimination laws, which can be implicated in an employment relationship. These may include biometric information privacy laws, data breach laws, fair debt and credit reporting acts, and leave laws. Several states (e.g., California, Colorado, Illinois) have enacted legislation restricting or regulating choice of law and forum selection provisions to ensure employees are protected by the laws of the state where they work and not required to travel to a forum where they have no connection to litigate a dispute. Washington state has enacted such protections in the context of adjudicating noncompetition covenants and nondisclosure or nondisparagement provisions. 4.  Restrictive Covenants Must Be Carefully Tailored An employer may desire to include more robust provisions, such as non-competition, nondisparagement, and confidentiality provisions (drafted in accordance with applicable state and federal law) based on the individual’s position or access to confidential information. Tip: In addition to state laws enacted to prevent overreaching confidentiality and non-disparagement provisions, the National Labor Relations Act (NLRA) also restricts these provisions insofar as they interfere with individuals' ability to engage in protected concerted activity. The NLRA’s protections in this regard apply to both unionized and non-unionized, non-supervisory employees and applicants.      5. Existing Agreements Can Affect the Separation Agreement  Prior agreements between the employee and the company may impact the separation agreement. Prior agreements may include an employment agreement, equity agreement, work-for-hire agreement, non-competition agreement, or arbitration agreement.   Tips: The “complete agreement” (or integration provision) of the separation agreement may need to address prior agreements, and if appropriate, confirm the prior agreements remain in effect. Ensure the agreements have consistent provisions (e.g., arbitration provisions, forum selection clauses, choice of law, etc.). Use the separation agreement to update or amend prior agreements that may contain unenforceable provisions. 6. The Circumstances of Separation Shape the Agreement A separation agreement for a current employee:  should clarify the employee’s last day worked include the requirement that the employee not sign the agreement until after the last day worked  should distinguish between the employee’s final compensation and accrued paid time off (if required to be paid by state law) versus the consideration, along with a statement confirming the employee will be paid the former even if the employee chooses not to sign the separation agreement If a separation agreement is negotiated after the individual engaged in protected activity or asserted a claim, the employer likely wants to address that in the agreement. 7. Severance Practices Should Remain Consistent Employers should refer to existing policies and practices in place regarding the amount of severance pay (or consideration) offered to impacted individuals. In the absence of such policies, employers should ensure that the amount of severance offered is tied to legitimate, non-discriminatory reasons, such as tenure, position, proximity in time of multiple layoffs/terminations, and perhaps even litigation risk. Tip: Payment of varying amounts of benefits, such as severance (e.g., consideration for a waiver agreement), may provide a basis for a discrimination claim when certain protected classes are paid more generously. This is true even when the employer is not legally required to provide severance.  8. Special Rules Apply for Union Employees Offering a separation agreement to a union member requires careful review of, inter alia, the governing collective bargaining agreement and the NLRA. Offering severance to a union member may first require negotiating with the union to avoid a claim of unfair labor practices. Also, the collective bargaining agreement may include agreed-upon selection for layoff, progressive discipline, conduct that constitutes a terminable offense, or formulas for determining severance. Of course, ensuring nondisparagement, confidentiality, and arbitration provisions do not run afoul of the NLRA are also imperative. It is always best practice to have legal counsel review separation agreements to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on implementing individual terminations or layoffs of any size. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.    

Hillary Arrow Booth (Partner- Los Angeles, CA) was recently honored with the Transportation Lawyers Association’s Lifetime Achievement Award, presented on behalf of the Association by transportation attorney Kathleen C. Jeffries at the closing banquet of the Association’s Annual Conference on May 1, 2026. The award recognizes members for their longstanding dedication and service to the Association and the legal profession. Following her service on the officer ladder and as President during the 2018 – 2019 term, Hillary established the Association’s New and Young Lawyers Committee and later founded its DEI Committee, which she currently chairs. Hillary is also a past recipient of the Association’s Distinguished Service Award and continues to serve on the Executive Committee as a Voting Past President.   

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Blake Crawford (Partner-Dallas, TX) and John Podesta (Partner-San Francisco, CA) will present the Wilson Elser Forum webinar “Getting To It: CGL Coverage for Rip and Tear” on May 14, 2026. This presentation addresses a confounding challenge for insurers: When you have defective construction that requires accessing the defect to make repairs, how much, if anything, is covered under a contractor’s commercial general liability insurance policy? In this presentation, Blake and John provide jurisdictional context to the problem and offer practical approaches to help carriers evaluate their covered damage exposure.

The following Wilson Elser attorneys were named to the 2026 New York Metro Super Lawyers® and Rising Stars™ lists. 2026 New York Metro Super Lawyers New York Stephen J. Barrett (Partner) – Intellectual Property Richard W. Boone, Jr. (Partner) – Insurance Coverage Glenn J. Fuerth (Senior Counsel) – Construction Litigation David A. Glazer (Partner) – Personal Injury General: Defense Robin N. Gregory (Partner) – Personal Injury Medical Malpractice: Defense Ashley V. Humphries (Partner) – Personal Injury Medical Malpractice: Defense Larry H. Lum (Partner) – General Litigation Jonathan E. Meer (Partner) – Insurance Coverage Jennifer M. Schmalz (Partner) – Employment & Labor Joe B. Swart (Partner) – Personal Injury Medical Malpractice: Defense Jura Christine Zibas (Partner) – Intellectual Property White Plains John M. Flannery (Partner) – General Litigation Michael F. Grady (Partner) – Personal Injury Medical Malpractice: Defense Jacqueline Hatter (Partner) – General Litigation Stuart A. Miller (Partner) – Civil Litigation: Defense Shari Sckolnick (Of Counsel) – General Litigation Timothy J. Sheehan (Partner) – Personal Injury Medical Malpractice: Defense 2026 New York Metro Rising Stars Long Island Andreia L. Bento (Associate) – Personal Injury General: Defense Jakub D. Brodowski (Of Counsel) – Insurance Coverage New York Jenna A. Agatep Slater (Associate) – Employment & Labor Kristyna Burkova (Associate) – Personal Injury Medical Malpractice: Defense Kristen A. Carroll (Partner) – Appellate Xhulia Derhemi (Associate) – Transportation / Maritime Altea Costanza Di Stefano (Associate) – Insurance Coverage Anna Agnieszka Fita-Mellis (Associate) – Personal Injury General: Defense Mellissa Gobin (Associate) – Personal Injury General: Defense Benjamin D. Greenfield (Partner) – Personal Injury General: Defense Yusha Hiraman (Of Counsel) – Employment Litigation: Defense Shirley S. Karasick (Associate) – Business / Corporate Zachary Karetsky (Associate) – General Litigation Eric A. Kaufer (Partner) – Insurance Coverage Gary M. Kenney (Associate) – Insurance Coverage Pamela Langro (Of Counsel) – Insurance Coverage Armand Magardician (Associate) – Business Litigation Issac G. Netzer (Associate) – Personal Injury General: Defense John P. Sovich (Of Counsel) – Professional Liability: Defense Ashley C. Stromberg (Associate) – Construction Litigation Saige A. Subick (Of Counsel) – Civil Litigation: Defense Samuel C. Tarasowsky (Associate) – General Litigation Angel R. Vitiello (Associate) – Personal Injury General: Defense Melissa E. Young (Of Counsel) – Professional Liability: Defense Logan Youngworth-Wright (Associate) – General Litigation White Plains Edgar Aguilar-Ramirez (Associate) – Insurance Coverage Urva Ahmed (Associate) – Insurance Coverage Faneeza Ali (Associate) – Insurance Coverage Christin M. Brown (Of Counsel) – Personal Injury General: Defense Tal Z. Cushmaro (Partner) – Personal Injury General: Defense Victoria DeMarco (Associate) – Personal Injury General: Defense Christopher W. Hofmann (Associate) – Personal Injury Medical Malpractice: Defense James Marshall (Of Counsel) – General Litigation Tyler Martin (Associate) – Personal Injury General: Defense Thomas C. O’Connor (Associate) – Personal Injury General: Defense John A. Vitagliano (Of Counsel) – State/Local/Municipal Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys 40 years old and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named on these lists.

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.

Richard Boone (Partner-New York, NY), and Daniel Tranen (Partner-St. Louis, MO) will present the Wilson Elser Forum webinar “Generative AI and the Future of Coverage Litigation” on May 12, 2026. This presentation explores how the rapid rise of generative AI is creating new and complex challenges for the insurance industry, both as a source of novel claims and as a powerful tool insurers are increasingly adopting in their claims-handling processes, and what that means for the future of coverage litigation. The session examines real-world AI-related lawsuits, from claims accusing companies of overstating their AI capabilities to those alleging discrimination tied to automated hiring tools, and considers how existing policies may or may not address them. The presenters explore the growing trend of AI-specific coverage and policy exclusions, offering practical steps insurers can take to proactively prepare for discovery challenges related to their AI use, as well as guidance for policyholders, brokers, underwriters, and claims professionals seeking to identify and close gaps in coverage. Whether you work in insurance, practice law, or simply want to understand how AI is reshaping risk and liability on both sides of the coverage equation, this presentation offers a clear, accessible overview of the issues that matter most today.

Angela Sekerka (Of Counsel-Chicago/New York, NY) and Jonathan Meer (Partner-New York, NY) secured dismissal of a claim alleging national origin discrimination in housing before the U.S. Department of Housing and Urban Development (HUD). In this matter, HUD found no probable cause that national origin was considered in the respondents’ handling of the claimant’s maintenance requests or his concerns regarding unauthorized vehicles in his assigned parking space. HUD noted that even if the comment “go back to your country” was made, this single isolated comment did not rise to the level of harassment or discriminatory intent in connection with the respondents’ processing of the claimant’s maintenance requests. HUD also noted that additional maintenance requests could not be completed because the complainant refused to grant access to his unit. With respect to the parking issue, HUD found insufficient evidence of discriminatory motive based on national origin, observing that the respondents attempted to locate the vehicle owner parked in the complainant’s spot and, when unsuccessful, offered the claimant’s monetary compensation for the inconvenience.

Jonathan Meer (Partner-New York, NY) will present on the webinar panel “Ethics 101” on May 13, 2026, as part of the CLM Insurance 101 Series. Jonathan, who will be joined by insurer representatives, will address ethical issues facing insurers and coverage counsel throughout the lifespan of a claim. The session examines the ethical responsibilities of claims professionals and the standards that guide fair and compliant claim handling, the differences between legal obligations and ethical responsibilities, and issues related to conflicts of interest. Attendees will explore common ethical dilemmas, decision-making frameworks, and receive guidance on best practices for maintaining integrity throughout the claims process. This foundational discussion reinforces the importance of transparency, accountability, and professionalism in every stage of a claim.

Joshua Cash (Partner-New York, NY) and Antony Lembersky (Of Counsel-New York, NY) secured a unanimous defense verdict in Queens County Supreme Court in a liability matter involving a patron who allegedly tripped, but did not fall, at their casino client’s facility – the first in New York City with live table games. The plaintiff, a 43-year-old male casino regular, alleged that while he was exiting the casino, he tripped over a raised metal floor saddle serving as the transition between the casino floor’s indoor carpeting and the cement MTA Skybridge leading to the A-Train. He alleged that because his right big toe struck the metal, his open-toed sandal, or slide, violently ripped open. Fortunately for the casino, the incident was captured on surveillance video and was played for the jury multiple times. Even the plaintiff’s counsel acknowledged, in both his opening and closing remarks to the jury, that after seeing the video, you may ask yourself, “That’s it?” Joshua and Antony emphasized that the plaintiff merely stubbed his toe, and that the jury should focus on the credible evidence and the more likely scenario: his slide ripped first, causing his right toe to fall out and hit the metal floor saddle. They used approximately 35 minutes of video recorded before the incident to show the jury that as many as 167 people walked over the same metal floor saddle where the plaintiff stubbed his toe without issue. The 11-minute video filmed post-incident also showed dozens of additional patrons traversing the area, many wearing similar open-toe sandals. In addition, the responding security officer testified on behalf of the casino that his inspection of the metal floor saddle immediately after the incident revealed no signs that it was raised or bent, and that it was flush with the surrounding floor. The jury deliberated for less than 20 minutes before unanimously deciding that the area where the plaintiff fell was reasonably safe. Although the matter never got to damages, the plaintiff underwent bunion surgery on his right toe/foot, which he claimed was traumatically induced, and formally demanded $495,000 to settle the case. Prior to jury selection, the plaintiff’s counsel reduced the demand to $80,000, but the client chose to have the Wilson Elser team make its case in the courtroom. 

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Hillary Arrow Booth (Partner- Los Angeles, CA) was recently honored with the Transportation Lawyers Association’s Lifetime Achievement Award, presented on behalf of the Association by transportation attorney Kathleen C. Jeffries at the closing banquet of the Association’s Annual Conference on May 1, 2026. The award recognizes members for their longstanding dedication and service to the Association and the legal profession. Following her service on the officer ladder and as President during the 2018 – 2019 term, Hillary established the Association’s New and Young Lawyers Committee and later founded its DEI Committee, which she currently chairs. Hillary is also a past recipient of the Association’s Distinguished Service Award and continues to serve on the Executive Committee as a Voting Past President.   

Q: Can a one-size-fits-all separation agreement expose a company to risk? A: Yes, using a uniform separation agreement may be efficient, but it can create legal exposure if not carefully tailored. Below are key considerations that will help employers ensure their separation agreements are legally compliant.  1. Individuals Aged 40-plus Trigger Additional Requirements If the impacted individual is 40 years or older, the Older Workers Benefit Protection Act of 1990 (“the OWBPA”), which amended the Age Discrimination in Employment Act of 1967, applies. The OWBPA requires that a waiver be “knowing and voluntary,” which requires, at a minimum:  Clear, written, plain language Geared to the individual’s level of understanding, accounting for their level of comprehension and education No technical jargon or long, complex sentences No misleading statements or misinformation Explicit reference to the Age Discrimination in Employment Act in connection with rights or claims being waived No waiver of future rights or claims Recommendation to consult with an attorney before executing the agreement At least 21 days to consider (or 45 days if a group layoff) 7-day revocation period after signing the agreement Additional consideration (e.g., something of value) beyond what the individual is already owed Tips: The 7-day revocation period cannot be shortened. The employer should pay consideration until after the revocation period expires. The individual may sign before the 21 or 45-day time period but only if voluntary and without inducement. Final compensation, business expenses the employer owes the individual, or accrued paid time off benefits legally owed to the individual do not count as consideration. 2. Group Layoffs Involving At Least One  Employee Aged 40-plus Require Additional Disclosures For company layoffs through “an exit incentive program” or “other termination layoff program” consisting of two or more employees (where at least one is 40-plus), the OWBPA imposes additional requirements: The review period increases to 45 days. Employers must provide detailed disclosures containing: the decisional unit; eligibility factors and selection criteria; job titles and ages of all individuals in the decisional unit selected for layoff; job titles and ages of all individuals in the decisional unit not selected for layoff. Tips: These disclosure requirements are in addition to the OWBPA requirements for a knowing and voluntary waiver in No. 1. The decisional unit is the class, unit, or group of employees from which the employer chose who was or was not selected for the program. Careful consideration should be given to the OWBPA notice to ensure compliance with the applicable federal law.  3. State and Local Laws Where Employees Work Varies State laws and local ordinances have varying protected classifications in addition to those protected by federal law (e.g., sex, pregnancy, age, race, color, national origin, ancestry, religion, disability, genetic information).  For example, the Illinois Human Rights Act affords protection to individuals based on their marital status, arrest record, unfavorable military discharge, family responsibilities, and reproductive health decisions. In Michigan, individuals are afforded protection based on their marital status, height, and weight. Indeed, many states, such as California, Colorado, New York, and North Dakota offer protection for lawful, off-duty conduct. Other states afford protection for off-duty cannabis use, off-duty tobacco use, and political activity/speech. Employers should ensure the waiver/release addresses all applicable protected classes, which may be accomplished by a general catchall statement such as “all other classes protected under applicable state or local laws.” Certain states have enacted legislation governing separation agreements. The Illinois Workplace Transparency Act (the IWTA) requires valid, bargained-for consideration in exchange for a confidentiality provision separate from consideration supporting a waiver/release of claims. Under the IWTA, an employer may not unilaterally include a statement that confidentiality is the employee’s preference or include confidentiality provisions related to “future or prospective concerted activity related to workplace conditions.” The IWTA also requires safeguards for confidentiality provisions, including written agreements, voluntary preferences, notice of the right to consult counsel, and 21-day review/7-day revocation periods. New York has enacted similar legislation. States, such as Illinois, California, Colorado, Washington, New York, Maine, and Oregon limit the use of confidentiality and non-disparagement provisions to prevent individuals from concealing unlawful employment practices.  Consideration may be given to naming state and local laws to be included in the release/waiver, in addition to the typical anti-discrimination laws, which can be implicated in an employment relationship. These may include biometric information privacy laws, data breach laws, fair debt and credit reporting acts, and leave laws. Several states (e.g., California, Colorado, Illinois) have enacted legislation restricting or regulating choice of law and forum selection provisions to ensure employees are protected by the laws of the state where they work and not required to travel to a forum where they have no connection to litigate a dispute. Washington state has enacted such protections in the context of adjudicating noncompetition covenants and nondisclosure or nondisparagement provisions. 4.  Restrictive Covenants Must Be Carefully Tailored An employer may desire to include more robust provisions, such as non-competition, nondisparagement, and confidentiality provisions (drafted in accordance with applicable state and federal law) based on the individual’s position or access to confidential information. Tip: In addition to state laws enacted to prevent overreaching confidentiality and non-disparagement provisions, the National Labor Relations Act (NLRA) also restricts these provisions insofar as they interfere with individuals' ability to engage in protected concerted activity. The NLRA’s protections in this regard apply to both unionized and non-unionized, non-supervisory employees and applicants.      5. Existing Agreements Can Affect the Separation Agreement  Prior agreements between the employee and the company may impact the separation agreement. Prior agreements may include an employment agreement, equity agreement, work-for-hire agreement, non-competition agreement, or arbitration agreement.   Tips: The “complete agreement” (or integration provision) of the separation agreement may need to address prior agreements, and if appropriate, confirm the prior agreements remain in effect. Ensure the agreements have consistent provisions (e.g., arbitration provisions, forum selection clauses, choice of law, etc.). Use the separation agreement to update or amend prior agreements that may contain unenforceable provisions. 6. The Circumstances of Separation Shape the Agreement A separation agreement for a current employee:  should clarify the employee’s last day worked include the requirement that the employee not sign the agreement until after the last day worked  should distinguish between the employee’s final compensation and accrued paid time off (if required to be paid by state law) versus the consideration, along with a statement confirming the employee will be paid the former even if the employee chooses not to sign the separation agreement If a separation agreement is negotiated after the individual engaged in protected activity or asserted a claim, the employer likely wants to address that in the agreement. 7. Severance Practices Should Remain Consistent Employers should refer to existing policies and practices in place regarding the amount of severance pay (or consideration) offered to impacted individuals. In the absence of such policies, employers should ensure that the amount of severance offered is tied to legitimate, non-discriminatory reasons, such as tenure, position, proximity in time of multiple layoffs/terminations, and perhaps even litigation risk. Tip: Payment of varying amounts of benefits, such as severance (e.g., consideration for a waiver agreement), may provide a basis for a discrimination claim when certain protected classes are paid more generously. This is true even when the employer is not legally required to provide severance.  8. Special Rules Apply for Union Employees Offering a separation agreement to a union member requires careful review of, inter alia, the governing collective bargaining agreement and the NLRA. Offering severance to a union member may first require negotiating with the union to avoid a claim of unfair labor practices. Also, the collective bargaining agreement may include agreed-upon selection for layoff, progressive discipline, conduct that constitutes a terminable offense, or formulas for determining severance. Of course, ensuring nondisparagement, confidentiality, and arbitration provisions do not run afoul of the NLRA are also imperative. It is always best practice to have legal counsel review separation agreements to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on implementing individual terminations or layoffs of any size. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.    

Blake Crawford (Partner-Dallas, TX) and John Podesta (Partner-San Francisco, CA) will present the Wilson Elser Forum webinar “Getting To It: CGL Coverage for Rip and Tear” on May 14, 2026. This presentation addresses a confounding challenge for insurers: When you have defective construction that requires accessing the defect to make repairs, how much, if anything, is covered under a contractor’s commercial general liability insurance policy? In this presentation, Blake and John provide jurisdictional context to the problem and offer practical approaches to help carriers evaluate their covered damage exposure.

The following Wilson Elser attorneys were named to the 2026 New York Metro Super Lawyers® and Rising Stars™ lists. 2026 New York Metro Super Lawyers New York Stephen J. Barrett (Partner) – Intellectual Property Richard W. Boone, Jr. (Partner) – Insurance Coverage Glenn J. Fuerth (Senior Counsel) – Construction Litigation David A. Glazer (Partner) – Personal Injury General: Defense Robin N. Gregory (Partner) – Personal Injury Medical Malpractice: Defense Ashley V. Humphries (Partner) – Personal Injury Medical Malpractice: Defense Larry H. Lum (Partner) – General Litigation Jonathan E. Meer (Partner) – Insurance Coverage Jennifer M. Schmalz (Partner) – Employment & Labor Joe B. Swart (Partner) – Personal Injury Medical Malpractice: Defense Jura Christine Zibas (Partner) – Intellectual Property White Plains John M. Flannery (Partner) – General Litigation Michael F. Grady (Partner) – Personal Injury Medical Malpractice: Defense Jacqueline Hatter (Partner) – General Litigation Stuart A. Miller (Partner) – Civil Litigation: Defense Shari Sckolnick (Of Counsel) – General Litigation Timothy J. Sheehan (Partner) – Personal Injury Medical Malpractice: Defense 2026 New York Metro Rising Stars Long Island Andreia L. Bento (Associate) – Personal Injury General: Defense Jakub D. Brodowski (Of Counsel) – Insurance Coverage New York Jenna A. Agatep Slater (Associate) – Employment & Labor Kristyna Burkova (Associate) – Personal Injury Medical Malpractice: Defense Kristen A. Carroll (Partner) – Appellate Xhulia Derhemi (Associate) – Transportation / Maritime Altea Costanza Di Stefano (Associate) – Insurance Coverage Anna Agnieszka Fita-Mellis (Associate) – Personal Injury General: Defense Mellissa Gobin (Associate) – Personal Injury General: Defense Benjamin D. Greenfield (Partner) – Personal Injury General: Defense Yusha Hiraman (Of Counsel) – Employment Litigation: Defense Shirley S. Karasick (Associate) – Business / Corporate Zachary Karetsky (Associate) – General Litigation Eric A. Kaufer (Partner) – Insurance Coverage Gary M. Kenney (Associate) – Insurance Coverage Pamela Langro (Of Counsel) – Insurance Coverage Armand Magardician (Associate) – Business Litigation Issac G. Netzer (Associate) – Personal Injury General: Defense John P. Sovich (Of Counsel) – Professional Liability: Defense Ashley C. Stromberg (Associate) – Construction Litigation Saige A. Subick (Of Counsel) – Civil Litigation: Defense Samuel C. Tarasowsky (Associate) – General Litigation Angel R. Vitiello (Associate) – Personal Injury General: Defense Melissa E. Young (Of Counsel) – Professional Liability: Defense Logan Youngworth-Wright (Associate) – General Litigation White Plains Edgar Aguilar-Ramirez (Associate) – Insurance Coverage Urva Ahmed (Associate) – Insurance Coverage Faneeza Ali (Associate) – Insurance Coverage Christin M. Brown (Of Counsel) – Personal Injury General: Defense Tal Z. Cushmaro (Partner) – Personal Injury General: Defense Victoria DeMarco (Associate) – Personal Injury General: Defense Christopher W. Hofmann (Associate) – Personal Injury Medical Malpractice: Defense James Marshall (Of Counsel) – General Litigation Tyler Martin (Associate) – Personal Injury General: Defense Thomas C. O’Connor (Associate) – Personal Injury General: Defense John A. Vitagliano (Of Counsel) – State/Local/Municipal Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys 40 years old and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named on these lists.

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.

Richard Boone (Partner-New York, NY), and Daniel Tranen (Partner-St. Louis, MO) will present the Wilson Elser Forum webinar “Generative AI and the Future of Coverage Litigation” on May 12, 2026. This presentation explores how the rapid rise of generative AI is creating new and complex challenges for the insurance industry, both as a source of novel claims and as a powerful tool insurers are increasingly adopting in their claims-handling processes, and what that means for the future of coverage litigation. The session examines real-world AI-related lawsuits, from claims accusing companies of overstating their AI capabilities to those alleging discrimination tied to automated hiring tools, and considers how existing policies may or may not address them. The presenters explore the growing trend of AI-specific coverage and policy exclusions, offering practical steps insurers can take to proactively prepare for discovery challenges related to their AI use, as well as guidance for policyholders, brokers, underwriters, and claims professionals seeking to identify and close gaps in coverage. Whether you work in insurance, practice law, or simply want to understand how AI is reshaping risk and liability on both sides of the coverage equation, this presentation offers a clear, accessible overview of the issues that matter most today.

Angela Sekerka (Of Counsel-Chicago/New York, NY) and Jonathan Meer (Partner-New York, NY) secured dismissal of a claim alleging national origin discrimination in housing before the U.S. Department of Housing and Urban Development (HUD). In this matter, HUD found no probable cause that national origin was considered in the respondents’ handling of the claimant’s maintenance requests or his concerns regarding unauthorized vehicles in his assigned parking space. HUD noted that even if the comment “go back to your country” was made, this single isolated comment did not rise to the level of harassment or discriminatory intent in connection with the respondents’ processing of the claimant’s maintenance requests. HUD also noted that additional maintenance requests could not be completed because the complainant refused to grant access to his unit. With respect to the parking issue, HUD found insufficient evidence of discriminatory motive based on national origin, observing that the respondents attempted to locate the vehicle owner parked in the complainant’s spot and, when unsuccessful, offered the claimant’s monetary compensation for the inconvenience.

Jonathan Meer (Partner-New York, NY) will present on the webinar panel “Ethics 101” on May 13, 2026, as part of the CLM Insurance 101 Series. Jonathan, who will be joined by insurer representatives, will address ethical issues facing insurers and coverage counsel throughout the lifespan of a claim. The session examines the ethical responsibilities of claims professionals and the standards that guide fair and compliant claim handling, the differences between legal obligations and ethical responsibilities, and issues related to conflicts of interest. Attendees will explore common ethical dilemmas, decision-making frameworks, and receive guidance on best practices for maintaining integrity throughout the claims process. This foundational discussion reinforces the importance of transparency, accountability, and professionalism in every stage of a claim.

Joshua Cash (Partner-New York, NY) and Antony Lembersky (Of Counsel-New York, NY) secured a unanimous defense verdict in Queens County Supreme Court in a liability matter involving a patron who allegedly tripped, but did not fall, at their casino client’s facility – the first in New York City with live table games. The plaintiff, a 43-year-old male casino regular, alleged that while he was exiting the casino, he tripped over a raised metal floor saddle serving as the transition between the casino floor’s indoor carpeting and the cement MTA Skybridge leading to the A-Train. He alleged that because his right big toe struck the metal, his open-toed sandal, or slide, violently ripped open. Fortunately for the casino, the incident was captured on surveillance video and was played for the jury multiple times. Even the plaintiff’s counsel acknowledged, in both his opening and closing remarks to the jury, that after seeing the video, you may ask yourself, “That’s it?” Joshua and Antony emphasized that the plaintiff merely stubbed his toe, and that the jury should focus on the credible evidence and the more likely scenario: his slide ripped first, causing his right toe to fall out and hit the metal floor saddle. They used approximately 35 minutes of video recorded before the incident to show the jury that as many as 167 people walked over the same metal floor saddle where the plaintiff stubbed his toe without issue. The 11-minute video filmed post-incident also showed dozens of additional patrons traversing the area, many wearing similar open-toe sandals. In addition, the responding security officer testified on behalf of the casino that his inspection of the metal floor saddle immediately after the incident revealed no signs that it was raised or bent, and that it was flush with the surrounding floor. The jury deliberated for less than 20 minutes before unanimously deciding that the area where the plaintiff fell was reasonably safe. Although the matter never got to damages, the plaintiff underwent bunion surgery on his right toe/foot, which he claimed was traumatically induced, and formally demanded $495,000 to settle the case. Prior to jury selection, the plaintiff’s counsel reduced the demand to $80,000, but the client chose to have the Wilson Elser team make its case in the courtroom. 

In Adams v. Bassett Healthcare Network, New York’s Appellate Division, Third Department directed disclosure of documents claimed to be privileged under the 2005 Patient Safety and Quality Improvement Act (PSQIA) in the state’s first appellate-level decision involving this federal protection from disclosure in litigation. The Adams decision is expected to be the first of many appellate decisions in the state that concerns the federal privilege, as providers in ever increasing numbers continue to join Patient Safety Organizations (PSO) in an effort to further their quality improvement priorities. In adopting PSQIA’s framework for patient safety activities, providers become eligible for the PSQIA privilege protections of certain documents generated and used in connection with these efforts. Broadly speaking, documents qualify for protection under PSQIA if (1) those that are made as part of the provider’s patient safety evaluation system (“PSES”) for reporting to the provider’s PSO and are transmitted to the PSO for that purpose (42 U.S.C. § 299b–21(7)(A)(i)(I)); (2) developed by the PSO for patient safety activities (42 U.S.C. § 299b–21(7)(A)(i)(II)); or (3) memorializing the provider’s deliberations and analysis within the context of PSES (42 U.S.C. § 299b–21(7)(A)(ii). In Adams, the defendant provider claimed privilege under the New York State Quality Assurance privilege of Education Law § 6527 and PSQIA. The Third Department denied the state privilege, finding that the provider failed to establish that the documents at issue were actually submitted to and used by its quality assurance committee, which is a necessary element of the entitlement to the privilege. As to the PSQIA privilege, the Adams defendant claimed protections only under the “deliberations and analysis” prong of PSQIA’s privilege framework. The Third Department noted it as “doubtful” that the PSQIA applies at all since the case involved state law claims, but this observation was likely the result of the fact that the parties did not brief the preemption issue. In any event, the court did proceed with its analysis assuming that the statute applies but held that the defendant did not establish an entitlement to its privilege protections because the submissions did not “establish[] that the[] particular reports [at issue] were actually provided to and reviewed by a PSO.” Adams, 2026 N.Y. Slip. Op. 02706 at 2. It is notable in this regard that while under the “reporting” prong of the PSQIA (codified at subsection i of 42 U.S.C. § 299b–21(7)(A)), the statute specifically requires that the documents be prepared for and actually reported to the PSO, the “deliberations and analysis” prong (codified in subsection ii) contains no such requirement. It is not yet clear whether the defendant will pursue further proceedings with respect to this decision. While in this Adams case the Third Department denied the defendant’s motion for a protective order, its decision turned in large part on the evidentiary support for entitlement to the privilege. To the extent that this decision is governed by issues of law (including preemption and the elements required to establish any of the three disparate grounds for the PSQIA privilege), future appellate cases in the state are expected to revisit and clarify these issues.

Hillary Arrow Booth (Partner- Los Angeles, CA) was recently honored with the Transportation Lawyers Association’s Lifetime Achievement Award, presented on behalf of the Association by transportation attorney Kathleen C. Jeffries at the closing banquet of the Association’s Annual Conference on May 1, 2026. The award recognizes members for their longstanding dedication and service to the Association and the legal profession. Following her service on the officer ladder and as President during the 2018 – 2019 term, Hillary established the Association’s New and Young Lawyers Committee and later founded its DEI Committee, which she currently chairs. Hillary is also a past recipient of the Association’s Distinguished Service Award and continues to serve on the Executive Committee as a Voting Past President.   

Q: Can a one-size-fits-all separation agreement expose a company to risk? A: Yes, using a uniform separation agreement may be efficient, but it can create legal exposure if not carefully tailored. Below are key considerations that will help employers ensure their separation agreements are legally compliant.  1. Individuals Aged 40-plus Trigger Additional Requirements If the impacted individual is 40 years or older, the Older Workers Benefit Protection Act of 1990 (“the OWBPA”), which amended the Age Discrimination in Employment Act of 1967, applies. The OWBPA requires that a waiver be “knowing and voluntary,” which requires, at a minimum:  Clear, written, plain language Geared to the individual’s level of understanding, accounting for their level of comprehension and education No technical jargon or long, complex sentences No misleading statements or misinformation Explicit reference to the Age Discrimination in Employment Act in connection with rights or claims being waived No waiver of future rights or claims Recommendation to consult with an attorney before executing the agreement At least 21 days to consider (or 45 days if a group layoff) 7-day revocation period after signing the agreement Additional consideration (e.g., something of value) beyond what the individual is already owed Tips: The 7-day revocation period cannot be shortened. The employer should pay consideration until after the revocation period expires. The individual may sign before the 21 or 45-day time period but only if voluntary and without inducement. Final compensation, business expenses the employer owes the individual, or accrued paid time off benefits legally owed to the individual do not count as consideration. 2. Group Layoffs Involving At Least One  Employee Aged 40-plus Require Additional Disclosures For company layoffs through “an exit incentive program” or “other termination layoff program” consisting of two or more employees (where at least one is 40-plus), the OWBPA imposes additional requirements: The review period increases to 45 days. Employers must provide detailed disclosures containing: the decisional unit; eligibility factors and selection criteria; job titles and ages of all individuals in the decisional unit selected for layoff; job titles and ages of all individuals in the decisional unit not selected for layoff. Tips: These disclosure requirements are in addition to the OWBPA requirements for a knowing and voluntary waiver in No. 1. The decisional unit is the class, unit, or group of employees from which the employer chose who was or was not selected for the program. Careful consideration should be given to the OWBPA notice to ensure compliance with the applicable federal law.  3. State and Local Laws Where Employees Work Varies State laws and local ordinances have varying protected classifications in addition to those protected by federal law (e.g., sex, pregnancy, age, race, color, national origin, ancestry, religion, disability, genetic information).  For example, the Illinois Human Rights Act affords protection to individuals based on their marital status, arrest record, unfavorable military discharge, family responsibilities, and reproductive health decisions. In Michigan, individuals are afforded protection based on their marital status, height, and weight. Indeed, many states, such as California, Colorado, New York, and North Dakota offer protection for lawful, off-duty conduct. Other states afford protection for off-duty cannabis use, off-duty tobacco use, and political activity/speech. Employers should ensure the waiver/release addresses all applicable protected classes, which may be accomplished by a general catchall statement such as “all other classes protected under applicable state or local laws.” Certain states have enacted legislation governing separation agreements. The Illinois Workplace Transparency Act (the IWTA) requires valid, bargained-for consideration in exchange for a confidentiality provision separate from consideration supporting a waiver/release of claims. Under the IWTA, an employer may not unilaterally include a statement that confidentiality is the employee’s preference or include confidentiality provisions related to “future or prospective concerted activity related to workplace conditions.” The IWTA also requires safeguards for confidentiality provisions, including written agreements, voluntary preferences, notice of the right to consult counsel, and 21-day review/7-day revocation periods. New York has enacted similar legislation. States, such as Illinois, California, Colorado, Washington, New York, Maine, and Oregon limit the use of confidentiality and non-disparagement provisions to prevent individuals from concealing unlawful employment practices.  Consideration may be given to naming state and local laws to be included in the release/waiver, in addition to the typical anti-discrimination laws, which can be implicated in an employment relationship. These may include biometric information privacy laws, data breach laws, fair debt and credit reporting acts, and leave laws. Several states (e.g., California, Colorado, Illinois) have enacted legislation restricting or regulating choice of law and forum selection provisions to ensure employees are protected by the laws of the state where they work and not required to travel to a forum where they have no connection to litigate a dispute. Washington state has enacted such protections in the context of adjudicating noncompetition covenants and nondisclosure or nondisparagement provisions. 4.  Restrictive Covenants Must Be Carefully Tailored An employer may desire to include more robust provisions, such as non-competition, nondisparagement, and confidentiality provisions (drafted in accordance with applicable state and federal law) based on the individual’s position or access to confidential information. Tip: In addition to state laws enacted to prevent overreaching confidentiality and non-disparagement provisions, the National Labor Relations Act (NLRA) also restricts these provisions insofar as they interfere with individuals' ability to engage in protected concerted activity. The NLRA’s protections in this regard apply to both unionized and non-unionized, non-supervisory employees and applicants.      5. Existing Agreements Can Affect the Separation Agreement  Prior agreements between the employee and the company may impact the separation agreement. Prior agreements may include an employment agreement, equity agreement, work-for-hire agreement, non-competition agreement, or arbitration agreement.   Tips: The “complete agreement” (or integration provision) of the separation agreement may need to address prior agreements, and if appropriate, confirm the prior agreements remain in effect. Ensure the agreements have consistent provisions (e.g., arbitration provisions, forum selection clauses, choice of law, etc.). Use the separation agreement to update or amend prior agreements that may contain unenforceable provisions. 6. The Circumstances of Separation Shape the Agreement A separation agreement for a current employee:  should clarify the employee’s last day worked include the requirement that the employee not sign the agreement until after the last day worked  should distinguish between the employee’s final compensation and accrued paid time off (if required to be paid by state law) versus the consideration, along with a statement confirming the employee will be paid the former even if the employee chooses not to sign the separation agreement If a separation agreement is negotiated after the individual engaged in protected activity or asserted a claim, the employer likely wants to address that in the agreement. 7. Severance Practices Should Remain Consistent Employers should refer to existing policies and practices in place regarding the amount of severance pay (or consideration) offered to impacted individuals. In the absence of such policies, employers should ensure that the amount of severance offered is tied to legitimate, non-discriminatory reasons, such as tenure, position, proximity in time of multiple layoffs/terminations, and perhaps even litigation risk. Tip: Payment of varying amounts of benefits, such as severance (e.g., consideration for a waiver agreement), may provide a basis for a discrimination claim when certain protected classes are paid more generously. This is true even when the employer is not legally required to provide severance.  8. Special Rules Apply for Union Employees Offering a separation agreement to a union member requires careful review of, inter alia, the governing collective bargaining agreement and the NLRA. Offering severance to a union member may first require negotiating with the union to avoid a claim of unfair labor practices. Also, the collective bargaining agreement may include agreed-upon selection for layoff, progressive discipline, conduct that constitutes a terminable offense, or formulas for determining severance. Of course, ensuring nondisparagement, confidentiality, and arbitration provisions do not run afoul of the NLRA are also imperative. It is always best practice to have legal counsel review separation agreements to ensure the unique facts and circumstances and applicable law are considered. Wilson Elser’s national Employment and Labor Team is available for further guidance on implementing individual terminations or layoffs of any size. This article is for informational purposes only and should not be used in place of seeking legal guidance, nor does it constitute legal advice or the creation of an attorney-client relationship.    

Blake Crawford (Partner-Dallas, TX) and John Podesta (Partner-San Francisco, CA) will present the Wilson Elser Forum webinar “Getting To It: CGL Coverage for Rip and Tear” on May 14, 2026. This presentation addresses a confounding challenge for insurers: When you have defective construction that requires accessing the defect to make repairs, how much, if anything, is covered under a contractor’s commercial general liability insurance policy? In this presentation, Blake and John provide jurisdictional context to the problem and offer practical approaches to help carriers evaluate their covered damage exposure.

The following Wilson Elser attorneys were named to the 2026 New York Metro Super Lawyers® and Rising Stars™ lists. 2026 New York Metro Super Lawyers New York Stephen J. Barrett (Partner) – Intellectual Property Richard W. Boone, Jr. (Partner) – Insurance Coverage Glenn J. Fuerth (Senior Counsel) – Construction Litigation David A. Glazer (Partner) – Personal Injury General: Defense Robin N. Gregory (Partner) – Personal Injury Medical Malpractice: Defense Ashley V. Humphries (Partner) – Personal Injury Medical Malpractice: Defense Larry H. Lum (Partner) – General Litigation Jonathan E. Meer (Partner) – Insurance Coverage Jennifer M. Schmalz (Partner) – Employment & Labor Joe B. Swart (Partner) – Personal Injury Medical Malpractice: Defense Jura Christine Zibas (Partner) – Intellectual Property White Plains John M. Flannery (Partner) – General Litigation Michael F. Grady (Partner) – Personal Injury Medical Malpractice: Defense Jacqueline Hatter (Partner) – General Litigation Stuart A. Miller (Partner) – Civil Litigation: Defense Shari Sckolnick (Of Counsel) – General Litigation Timothy J. Sheehan (Partner) – Personal Injury Medical Malpractice: Defense 2026 New York Metro Rising Stars Long Island Andreia L. Bento (Associate) – Personal Injury General: Defense Jakub D. Brodowski (Of Counsel) – Insurance Coverage New York Jenna A. Agatep Slater (Associate) – Employment & Labor Kristyna Burkova (Associate) – Personal Injury Medical Malpractice: Defense Kristen A. Carroll (Partner) – Appellate Xhulia Derhemi (Associate) – Transportation / Maritime Altea Costanza Di Stefano (Associate) – Insurance Coverage Anna Agnieszka Fita-Mellis (Associate) – Personal Injury General: Defense Mellissa Gobin (Associate) – Personal Injury General: Defense Benjamin D. Greenfield (Partner) – Personal Injury General: Defense Yusha Hiraman (Of Counsel) – Employment Litigation: Defense Shirley S. Karasick (Associate) – Business / Corporate Zachary Karetsky (Associate) – General Litigation Eric A. Kaufer (Partner) – Insurance Coverage Gary M. Kenney (Associate) – Insurance Coverage Pamela Langro (Of Counsel) – Insurance Coverage Armand Magardician (Associate) – Business Litigation Issac G. Netzer (Associate) – Personal Injury General: Defense John P. Sovich (Of Counsel) – Professional Liability: Defense Ashley C. Stromberg (Associate) – Construction Litigation Saige A. Subick (Of Counsel) – Civil Litigation: Defense Samuel C. Tarasowsky (Associate) – General Litigation Angel R. Vitiello (Associate) – Personal Injury General: Defense Melissa E. Young (Of Counsel) – Professional Liability: Defense Logan Youngworth-Wright (Associate) – General Litigation White Plains Edgar Aguilar-Ramirez (Associate) – Insurance Coverage Urva Ahmed (Associate) – Insurance Coverage Faneeza Ali (Associate) – Insurance Coverage Christin M. Brown (Of Counsel) – Personal Injury General: Defense Tal Z. Cushmaro (Partner) – Personal Injury General: Defense Victoria DeMarco (Associate) – Personal Injury General: Defense Christopher W. Hofmann (Associate) – Personal Injury Medical Malpractice: Defense James Marshall (Of Counsel) – General Litigation Tyler Martin (Associate) – Personal Injury General: Defense Thomas C. O’Connor (Associate) – Personal Injury General: Defense John A. Vitagliano (Of Counsel) – State/Local/Municipal Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The Rising Stars lists, comprising the best attorneys 40 years old and younger or who have practiced law for 10 years or less, are published in Super Lawyers magazines and leading city and regional magazines nationwide. No more than 2.5 percent of the lawyers in the state are named on these lists.

The Department of Justice (DOJ) issued an order on April 23, 2026, rescheduling state-licensed medical marijuana and Food & Drug Administration (FDA)-approved cannabis products to Schedule III of the Controlled Substances Act (CSA). The order is also expected to jumpstart the stalled Drug Enforcement Administration (DEA) rescheduling process for adult-use marijuana, which currently remains in Schedule I. The order, therefore, narrows but does not eliminate federal prohibitions. Historical Insurer Treatment of Marijuana For years, federal illegality and Schedule I status fueled blanket exclusions, limited capacity, and encouraged a reliance on the excess and surplus (E&S) market, where bespoke forms and higher premiums filled coverage gaps. Large commercial insurers consistently cited federal illegality and related banking/Anti-Money Laundering (AML) concerns as the principal reasons to stay out, with reputational risk present but fading over time. Federal AML rules under the Bank Secrecy Act (BSA) added compliance friction for “financial institutions,” a term that includes insurers, keeping many programs E&S-only. Reinsurance treaties often include Schedule I barriers, limiting underwriting capacity and appetite. The result has been a fragmented market with tight limits, uneven forms and reinsurance constraints, while admitted options remained scarce.  Emerging Insurance Opportunities Under Schedule III Rescheduling removes a top financial headwind for state‑licensed medical operators by removing Internal Revenue Code Section 280E, enabling ordinary business deductions and improving margins and balance sheets that are essential for better insurance terms and capacity. As profitability and transparency improve, carriers are likely to expand property and business interruption limits for medical cannabis insureds and lean back into reinsurance partnerships that were hard to place under Schedule I. Directors and Officers (D&O) towers should also deepen if valuations, listings, and deal flow revive, though board risk will get more complex. On the casualty side, product liability and recall remain core needs across the supply chain, and demand should rise as operators scale and SKUs proliferate. Underwriting and Risk Assessment The expectation should not be for underwriting to get “easy” just because the schedule number has changed. Transitional risk is real as a result of new products, larger facilities, evolving QA systems, and changing oversight, all of which add execution risk that underwriters will price and condition.  Reclassification may also spark short‑term turbulence if unregulated products spike or enforcement lines blur, amplifying exposures around labeling, warnings, and adverse event tracking. Carriers must continue to scrutinize controls around testing, traceability, facility security protections, and product compliance.  Regulatory and Compliance Implications for Insurers Banking access should improve as perceived AML risk recedes, and Treasury’s Financial Crimes Enforcement (FinCEN) is widely expected to refresh guidance, which would materially reduce compliance concerns for insurers. That said, federal law still treats marijuana as a controlled substance, and FDA/DEA frameworks do not harmonize with adult‑use state markets. The federal prescription drug system mandates FDA‑approved products, doctor prescriptions, pharmacy dispensing and uniform labeling. The FDA has not approved “marijuana” itself for any condition, even though it has approved a CBD‑derived drug (Epidiolex) and several THC‑related drugs (Marinol, Syndros, Cesamet).  Schedule III drugs, by definition, require valid prescriptions. The new order recognizes state‑licensed medical marijuana within Schedule III, but it does not create FDA standards for those state‑program products.  The history of federal attention over CBD should be a cautionary tale for what may come next. Years after hemp was removed from the CSA, the FDA tried to police the quickly expanding consumer hemp product market but eventually gave up and punted the question to Congress in 2023. The regulatory status of CBD in consumer products remains unclear to this day. The move to Schedule III makes a similar pattern likely for medical marijuana products, while leaving intact the prohibition on interstate commerce for unapproved drugs. With no FDA playbook governing state medical cannabis, insurers still face gray zones on product safety, compliance warranties, and how to price recall and product‑liability risk across a patchwork of state standards. To date, the DOJ has largely sidestepped how federal rules will interact with state markets, and even now, FDA officials have signaled limited appetite and capacity to police the state industry. This uncertain compliance environment keeps the market in “proceed with caution” mode.  Broader Insurance Market Outlook Even with the new Schedule III order and an expected acceleration of rulemaking for adult-use cannabis products, most industry experts still forecast incremental, measured expansion rather than a flood of cheap capacity. Specialty E&S markets will maintain their early lead, scaling capacity where controls are strong and data quality is high. Established carriers may test targeted segments, which may include well-capitalized and vertically integrated operators with robust governance. Reinsurers, meanwhile, should selectively increase their presence as banking and financial reporting normalize. Admitted options may emerge first for lower hazard risks, but E&S will dominate complex risks until federal/state alignment is clearer and product safety litigation trends stabilize.  Where We Are Going Rescheduling is the green light many insurers have been waiting for, but the light is still flashing. Most importantly, the timing of rescheduling and rulemaking for adult-use cannabis products remains uncertain. Taxes and banking are set to improve immediately for medical marijuana operators. In this environment, new insurance entrants will follow the underwriting experts who already know the terrain. The winners will be carriers and insureds who treat this as a disciplined pivot‒ lock in compliance, invest in quality systems, and build programs that can scale as federal guidance catches up.  The next 12 to 24 months should see steady capacity gains and a gradual transition from “can we insure it?” to “how well is it run?” Meanwhile, E&S is still calling the plays while the admitted market warms up on the sidelines.  This article was published in the April 28, 2026, posting of Insurance Journal.