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Client Alert – Peter Pizzi to Present on IADC’s “Remote Depositions: A Panacea During a Pandemic?”
Client Alert – Peter Pizzi to Present on IADC’s “Remote Depositions: A Panacea During a Pandemic?” 150 150 walsh.law

On Thursday, April 23, 2020, Walsh Partner, Peter J. Pizzi will present in a complimentary Webinar at 1:00 PM EDT on “Remote Depositions: A Panacea During a Pandemic?”. For litigation to progress despite physical distancing, litigators must become adept at fully remote depositions. This panel will show how a deposition by video-conference takes place, how exhibits are shared, marked and even annotated, and how a high quality record can be obtained. The panel will also discuss challenges which the medium presents, how to avoid pitfalls, and the possible need for rules changes.

More information is available here.

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Updated Client Alert – DOJ and State Attorneys General Warn Against Exploiting Equipment and Supply Shortages
Updated Client Alert – DOJ and State Attorneys General Warn Against Exploiting Equipment and Supply Shortages 150 150 walsh.law

The Department of Justice’s Antitrust Division announced on March 9, 2020 that its lawyers stand ready to initiate investigations to mitigate potential risks the public faces from scarcities associated with the COVID-19 pandemic. It has been widely reported that there exist significant shortages for government, private sector, and individual U.S. consumers of personal protective equipment (PPE) such as sterile gloves, respirators, and face masks.  To combat COVID-19 related fraud and misconduct, U.S. Attorney for the District of New Jersey Craig Carpenito, New Jersey Attorney General Gurbir S. Grewal, and New Jersey Acting State Comptroller Kevin D. Walsh recently announced on March 30, 2020 of the formation of a joint federal-state task force “to investigate and prosecute a wide range of misconduct arising from the COVID-19 pandemic, including the unlawful hoarding of medical supplies, price gouging, charity scams, procurement fraud, insurance fraud, phishing schemes, and false and misleading investment opportunities.”[i]  To aid in these efforts, the task force is comprised of a number of agencies, including the Federal Bureau of Investigation; the Department of Health and Human Services, Office of the Inspector General; the U.S. Secret Service; the U.S. Postal Inspection Service; and the Office of Inspector General, among others.

Voicing concern for consumers and businesses on the “buy” side of the equation, the Antitrust Division warned “bad actors” against trying to exploit the crisis created by the government’s failure to act in advance to ramp up production of critical supplies and equipment.  The press release cautions suppliers against “tak[ing] advantage of emergency response efforts, healthcare providers, or the American people during this crucial time.”  Those who “fix prices or rig bids for personal health protection equipment such as sterile gloves and face masks could face criminal prosecution.”  Similarly, the Division warned against any horizontal allocation of customers.

Attorney General William P. Barr is quoted: “The Department of Justice stands ready to make sure that bad actors do not take advantage of emergency response efforts, health care providers, or the American people during this crucial time … I am committed to ensuring that the department’s resources are available to combat any wrongdoing and protect the public.”

Also, several state attorneys general have announced measures to combat price gouging in connection with the COVID-19 pandemic.  For instance, New Jersey Attorney Grewal announced that his office has issued more than 80 cease and desist and warning letters in response to complaints of price gouging, and explained that his office is “taking an all-hands-on-deck approach to consumer complaints about price gouging and other abuses related to the COVID-19 pandemic[.]”

On March 23, 2020, President Trump signed an executive order to prevent price gouging and hording of supplies needed to combat COVID-19.  Executive Order 13909, entitled “Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of COVID–19,” provides that personal protective equipment and ventilators meet criteria to be considered “scarce and critical material essential to the national defense” under the recently-invoked Defense Production Act (DPA).  During the March 23, 2020 Press Briefing of the Coronavirus Task Force, United States Attorney General William Barr stated that “[o]nce specific materials are so designated, persons are prohibited from accumulating those items in excess of reasonable personal or business needs, or for the purpose of selling them in excess of prevailing market prices.”  According to Attorney General Barr, those determined to be hoarding or price gouging could face criminal prosecution.

None of this has been lost on plaintiff class action lawyers.

On March 10, 2020, a purported class action complaint was filed against Amazon in Florida state court accusing it of price-gouging on toilet paper and hand sanitizer.

And on April 10, 2020, 3M Company sued mask-seller, Performance Supply LLC, for alleged price gouging and trademark infringement in connection with 3M-brand N95 respirators.[ii]  In an action filed in the Southern District of New York, 3M alleges that defendant tried to sell 3M-branded masks to New York officials for up to six times the list price.  3M’s Complaint specifically alleges, for instance, that “[a]nother equally detestable element of Defendant’s unlawful conduct is price gouging.  Defendant’s quote of $6.05 per 3M brand, N95 Model 8120 respirator is approximately 600% over 3M’s suggested list price of $1.02-$1.31 per respirator.”[iii]  3M also alleges deceptive trade practices by defendant in connection with 3M brand and marks.

Walsh partners Marc D. Haefner and Liza M. Walsh lead the firm’s antitrust practice and have particular experience in the application of antitrust laws to pharmaceutical and consumer product pricing issues.

For more information, please contact Marc D. Haefner at mhaefner@walsh.law or (973) 757-1013 or Liza M. Walsh at lwalsh@walsh.law or (973) 757-1101.

 

  • [i] U.S. Attorney Carpenito, AG Grewal, Acting Comptroller Walsh Announce Federal-State COVID-19 Fraud Task Force, available at: https://nj.gov/governor/news/news/562020/approved/20200330a.shtml.
  • [ii] This action is captioned, 3M Company v. Performance Supply, LLC, Civil Action No. 1:20-CV-02949 (S.D.N.Y.).
  • [iii] Id., Complaint at ¶44.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Client Alert – United States Department of Labor Issues Q&As on the FFCRA’s Paid Parental Leave Provisions
Client Alert – United States Department of Labor Issues Q&As on the FFCRA’s Paid Parental Leave Provisions 150 150 walsh.law

The United States Department of Labor (“DOL”) answered some key questions regarding the Families First Coronavirus Response Act, H.R. 6201 (“FFCRA”), which we covered in an earlier post here.  While the DOL’s Q&As address many questions raised by the FFCRA, additional updates may be forthcoming, and we will continue to monitor further guidance issued by the DOL.

Below are some of the most pertinent highlights:

  • The Small Business Exemption

Businesses with fewer than 50 employers may seek an exemption from the FFCRA requirement to provide expanded family and medical leave due to school or day care closures or child care provider unavailability for COVID-19 related reasons if an authorized officer of the business can establish one of the following: (1) the financial obligation of providing leave would exceed available business revenues and cause the business to cease operating at a minimal capacity; (2) the loss of the employee’s specialized skill, knowledge or responsibilities would result in a substantial risk to the business’s financial health or operational capabilities; or (3) there are insufficient workers available to assume the responsibilities in order for the business to operate at minimal capacity.

A business must document why it believes it meets the exemption criteria but should not send any documentation to the DOL at this time. Further information on the exemption and how it will be applied is expected in the DOL’s forthcoming regulations.

  • Documentation for FFCRA Paid Sick Leave and Extended Family and Medical Leave

Employers may require employees to provide documentation to receive paid sick leave or expanded family and medical leave under the FFCRA.  These records can include either a published quarantine order or a doctor’s note prescribing self-quarantine.  Employees who seek family leave because their child’s school or daycare is closed, or who seek to take leave for another existing qualifying reason under the Family and Medical Leave Act (FMLA),  must provide the medical certifications required under the FMLA. Employees taking leave for childcare should provide written notice of school or daycare closure, such as an announcement from the school or news article. Employers who seek reimbursement for the costs of leave provided under the FFCRA through refundable tax credits must retain this information and may need to file it with the IRS when seeking the tax credit.

  • Intermittent FFCRA Leave

An employee may take FFCRA leave intermittently while teleworking, if the employer allows it.  While teleworking, an employee may take intermittent leave in any increment, provided the employer agrees.  For an employee who is working at his or her usual job site, paid sick leave must be taken in full-day increments and can only be taken intermittently to care for a child whose school or day care is closed due to COVID-19, if the employer agrees. Employees who are not teleworking may take intermittent paid family leave under the FFCRA, but only with the employer’s permission.

  • FFCRA Leave Unavailable If/When a Workplace Shuts Down

Paid leave time is not available if an employer furloughs an employee or shuts down, whether temporarily or permanently, and stops paying the employee. If an employee was receiving paid leave before the furlough or closure, the employee is no longer entitled to paid leave as of the date of furlough or closure.  If an employer reduces an employee’s scheduled work hours, the employee cannot use FFCRA leave for the hours he or she is no longer scheduled to work. Employees may seek unemployment insurance under these circumstances.

  • FFCRA Leave Is Provided in Addition to Other Available Paid Leave

Employers cannot require employees to utilize employer-provided paid time off prior to taking FFCRA leave. Employees must choose to utilize either FFCRA leave or employer-provided paid time off (i.e. vacation and sick days) and may not use both leaves simultaneously unless the employer and employee both agree. If an employer permits an employee to take both leaves simultaneously to supplement his or her income, the employer may only claim a tax credit for the cost of the FFCRA portion of the leave.

  • FMLA and EFMLEA Can Only be Used for a Combined Total of 12 Weeks in 12-month Period

If an employee has previously taken FMLA leave, he or she can also receive paid leave under the Emergency Family Medical Leave Expansion Act (“EFMLEA”), however, the combined total leave cannot exceed 12 weeks in a 12-month period of time.  Once the 12 weeks have been exhausted, whether used entirely under FMLA, or under the EFMLEA or a combination of the two, no additional leave is available.

For further information about these or other issues arising out of the COVID-19 crisis, please contact Caitlin Cascino at ccascino@walsh.law or (973) 757-1024 or Mariel Belanger at mbelanger@walsh.law or (973) 757-1039.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Strategic Takeaways From NJ Trespass Ruling – Hector D. Ruiz Writes for Law360
Strategic Takeaways From NJ Trespass Ruling – Hector D. Ruiz Writes for Law360 150 150 walsh.law

The following article originally appeared on Law360.

Partner Hector D. Ruiz authored an article on the New Jersey Supreme Court’s decision addressing damages available to an injured landowner in a trespass to property case; which also offered guidance to trial practitioners preparing for trial. Since issuing this recent decision, the Supreme Court has ordered modifications to court operations to address the current COVID-19 pandemic. Therefore, trial courts may be required to be much more accommodating and lenient with trial teams during this unprecedented COVID-19 emergency.

On March 11, the New Jersey Supreme Court issued its decision in Joseph Kornbleuth DMD v. Thomas Westover,[1] which addressed the measure of damages available to an injured landowner in a trespass-to-property case. Also embedded in the Supreme Court’s decision is a significant ruling concerning the unavailability of designated trial counsel and trial staff.

The Kornbleuths and the Westovers shared a rear property line, marked by a bamboo barrier which provided visual privacy between the neighbors. After the bamboo was removed from both properties by the Westovers’ contractor without the Kornbleuths’ permission, the Kornbleuths sued for trespass and conversion, arguing that the removal interfered with their privacy and aesthetic interests.[2]

On the day trial was scheduled to commence, the Kornbleuths’ designated trial counsel requested a continuance, citing the unexpected unavailability of his second chair and information technology assistant due to medical reasons. Although the trial court offered its own IT staff to aid in the presentation, counsel refused to proceed with the adjudication of pending motions in limine and jury selection. The trial court declined to adjourn the trial and dismissed the case without prejudice.

The Kornbleuths succeeded in reinstating the case, but were sanctioned by the court in the amount of the Westovers’ costs associated with trial preparations.

In granting the Westovers’ motion for summary judgment, the trial court held that the appropriate measure of damages was diminution value, and the Kornbleuths failed to provide such evidence. The trial court also found that the generalized desire for a privacy screen failed to raise any genuine issue of material fact that the bamboo was of peculiar value to the Kornbleuths.

As discussed below, the New Jersey Supreme Court’s analysis provides important substantive guidance to plaintiffs and defendants in trespass-to-property cases, and vital procedural advice to trial practitioners in New Jersey.

No Entitlement to Trial Team of Party’s Choice if They Will Delay Proceedings

The Supreme Court explained that the choice of designated trial counsel is an important consideration, emphasizing that parties are entitled to have designated counsel represent them pursuant to New Jersey Court Rule 4:25-4, absent exceptional circumstances.[3] The court made abundantly clear, however, that “parties are not entitled to have other members of the trial team present to help designated trial counsel if awaiting the availability of those individuals would delay proceedings.”[4]

Underlying the court’s ruling is the principle that the court rules afford a party only one designated counsel.[5] Accordingly, the Supreme Court held that the trial court appropriately exercised its discretion[6] in denying the adjournment request and imposing sanctions.[7]

Measure of Damages in Trespass-to-Land Cases

The Supreme Court examined the framework outlined in Section 929(a)(1) of the Restatement (Second) of Torts, which limits damages recoverable for trespass to diminution in value when there is no reason personal to the owner for restoring the property to its original condition.[8]

The court also turned to Appellate Division decisions involving its consideration of diminution of value and restoration costs as compensation for trespassory tree removal. For instance, in Huber v. Serpico,[9] the only case in this state’s history to hold that trees or shrubbery can have peculiar value,[10] the plaintiffs owned and occupied a tract of land containing their home as well as an assorted grove of some 70- to 85-year-old trees.[11]

The Kornbleuths maintained that their election of restoration costs was supported by discovery, and the bamboo fence was of peculiar value to them because they lived on the property and the fence provided privacy and held aesthetic value to them.[12] The Supreme Court was unpersuaded, citing a lack evidence of diminished value,[13] and finding no genuine issue of material fact that there was some peculiar value as to the bamboo.

The court explained that “[a] general interest in privacy and vague assertions of the aesthetic worth of bamboo as opposed to any other natural barrier do not establish value personal to the owner.”[14] Observing that the touchstone of damages is reasonableness, the court concluded that even if the Kornbleuths presented legally sufficient evidence of peculiar value, reasonableness could not be determined “without evidence of diminished value or some similarly helpful yardstick for comparison.”[15]

Strategic Takeaways

First, this recent decision should serve as a cautionary tale for counsel planning for trial. Plainly, courts in New Jersey place great importance on a parties’ designated counsel. Indeed, according to the Supreme Court, the “designation of trial counsel is significant to the relationship among counsel, client, and court, and is administratively necessary for the smooth operation of this state’s judiciary.” [16]

Notably, the court’s declaration that a party is entitled to designated counsel’s representation serves as unambiguous guidance to trial courts addressing adjournment requests relating to designated counsel’s personal availability.

Nevertheless, while courts should be more accommodating to adjournment requests pertaining to designated trial counsel; trial staff, including co-counsel, is not afforded the same status. In a time of the ever-increasing ubiquity of courtroom technology and sophisticated digital presentations, trial counsel in New Jersey is warned to plan ahead and create redundancy with trial teams.

Given the current COVID-19 emergency, however, it is unclear how trial courts will treat adjournment requests in practice. For instance, after the Supreme Court issued this decision, the court ordered modifications to court operations including, “suspending certain court proceedings, extending deadlines, and tolling time periods” to deal with the health crises.[17] Therefore, trial courts may afford trial teams much more flexibility during this unprecedented COVID-19 emergency.

Lastly, when seeking damages in a trespass-to-land case, there are several considerations.

First, the Supreme Court makes clear that the touchstone in addressing damages to an injured landowner is reasonableness. At a minimum, a reasonableness determination requires evidence of diminished value even where restoration or other damages are sought.

Second, given that New Jersey courts have historically rejected claims that certain foliage has peculiar value, general interests and vague assertions of aesthetic worth cannot, as a matter of law, establish value personal to the owner that might justify the award of restoration costs.

Third, the Supreme Court’s ruling suggests that claimants who do not reside on the property will face a more difficult burden in establishing that aesthetic worth is personal to the owner.

 

[1] (A-71-18) (081898).

[2] Plaintiffs also asserted a negligence claim against the bamboo clearing landscaper hired by defendants, but subsequently settled with the contractors.

[3] A-71-18 at 10.

[4] Id. at 12.

[5] Id. at 10 (citing A Practitioner’s Guide to New Jersey’s Civil Court Procedures § 10(c) (2011), https://www.njcourts.gov/attorneys/assets/appellate/practitionersguide.pdf (stating that, under Rule 4:25-4, “[n]o [d]esignation of [t]rial [c]o-[c]ounsel [is] [p]ermitted” because the rules permit “only one designated attorney per interested party”).

[6] Prior to seeking leave to appeal, the Kornbleuths unsuccessfully moved for reconsideration of the trial court’s decisions. Therefore, the New Jersey Supreme Court’s review was pursuant to the abuse of discretion standard.

[7] Id. at 11.

[8] Restatement (Second) of Torts § 929(1) (Am. Law Inst. 1979).

[9] 71 N.J. Super. 329 (App. Div. 1962).

[10] The plaintiffs in Huber presented evidence of restoration damages along with diminution of value damages.

[11] The Supreme Court also examined Mosteller v. Naiman, 416 N.J. Super. 632 (App. Div. 2010), where the Appellate Division rejected a claim premised on the peculiar value of certain trees where the plaintiffs did not reside on the property and cited assorted items of damage like loss of shade, increased erosion and insect risks.

[12] A-71-18 at 21 (Mr. Kornbleuth testified at deposition, for example, that the Kornbleuth’s “enjoy — looking out our windows. Now I look under their ugly house with their crap and live like pigs. … I love my backyard; I love the privacy of it, you know, felt like I was in the woods.”)

[13] The Kornbleuths submitted expert reports by their landscape architect projecting restoration bamboo costs, but failed to provide proof of other losses, such as a diminution of the property’s market value.

[14] A-71-18 at 23.

[15] Id.

[16] A-71-18 at 10.

[17] Supreme Court of New Jersey Order Extending COVID-19-Related Suspensions of Court Proceedings and Other Matters (March 27, 2020).

 

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Client Alert – A Pointed Labor and Employment Discussion Regarding COVID-19 and Groundbreaking Laws
Client Alert – A Pointed Labor and Employment Discussion Regarding COVID-19 and Groundbreaking Laws 150 150 walsh.law

Walsh attorney Caitlin P. Cascino is offering businesses some clarity around COVID-19’s fast-moving workplace regulations at a webinar tomorrow, 3/31/20 at 12 noon CDT, hosted by the International Association of Defense Counsel (IADC). Join us for A Pointed Labor and Employment Discussion Regarding COVID-19 and Groundbreaking Laws as the panel discusses the FFCRA, family leave, paid sick leave, and the economic stimulus package.

With Caitlin on the panel are Robert A. Luskin of Goodman McGuffey LLP in Atlanta, and Bonnie Mayfield of Dykema Gossett PLLC in Bloomfield Hills, Michigan. Second in a series covering different aspects of COVID-19’s impact, the webinar is free but registration is required. Sign up here.

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Client Alert – CARES Act Contains Several Key Bankruptcy-Related Provisions Aimed at Helping Consumers & Small Businesses
Client Alert – CARES Act Contains Several Key Bankruptcy-Related Provisions Aimed at Helping Consumers & Small Businesses 150 150 walsh.law

On March 27, 2020, the much-anticipated Coronavirus Aid, Relief and Economic Security Act (CARES Act) was signed into law.  In addition to a myriad of other economic relief measures aimed at avoiding bankruptcy filings, the Act contains several provisions specific to debtors in bankruptcy.  As summarized by the American Bankruptcy Institute, those provisions are as follows:

  • Amending the Small Business Reorganization Act of 2019 (SBRA) to increase the eligibility threshold for businesses filing under new subchapter V of chapter 11 of the U.S. Bankruptcy Code from $2,725,625 of debt to $7,500,000. The eligibility threshold will return to $2,725,625 after one year.
  • Amending the definition of “income” in the Bankruptcy Code for chapters 7 and 13 to exclude coronavirus-related payments from the federal government from being treated as “income” for purposes of filing bankruptcy.
  • Clarifying that the calculation of disposable income for purposes of confirming a chapter 13 plan shall not include coronavirus-related payments.
  • Explicitly permitting individuals and families currently in chapter 13 to seek payment plan modifications if they are experiencing a material financial hardship due to the coronavirus pandemic, including extending their payments for up to seven years after their initial plan payment was due.

 

See Senate Passes Coronavirus Stimulation Bill with Provisions Proving Greater Access to Bankruptcy Relief For Distressed Consumers and Small Business, ABI.org., Mar. 26, 2020, available at: https://www.abi.org/newsroom/press-releases/senate-passes-coronavirus-stimulus-bill-with-provisions-providing-greater.

According to the Wall Street Journal, these provisions were pushed by several legal advocacy groups, including the National Association of Consumer Bankruptcy Attorneys, the National Bankruptcy Conference and the National Consumer Law Center.  See Bankrupt Borrowers Won’t Forfeit Coronavirus Aid Payments to Creditors Under Stimulus Package, WSJ.com, Mar. 27, 2020, available at: https://www.wsj.com/articles/bankrupt-borrowers-wont-forfeit-coronavirus-aid-payments-to-creditors-under-stimulus-package-11585224513.

The SBRA was intended as a mechanism to allow small businesses to take advantage of bankruptcy protection by making the process less expensive and faster.  Many industry professionals have been calling for the expansion of the debt limits since the Act was passed.  If successful, perhaps this amendment will survive the temporal limitations placed upon it by the CARES Act.

Despite the SBRA incentives and the amendments contained in the CARES Act, many small businesses whose revenue stream has been reduced and/or whose expenses have increased as a result of the COVID-19 pandemic, will find chapter 11 untenable and may be facing liquidation.  Not only are chapter 11 debtors faced with substantial additional costs associated with a reorganization for such things as United States Trustee fees, professionals, and increased operating costs, but being in bankruptcy itself presents struggles with businesses’ relationships with its vendors and lenders, financing opinions, bonding availability, and the like.

For more information regarding options for your business, including bankruptcy, or relating to creditors’ rights during this unprecedented time, please contact Stephen Falanga at sfalanga@walsh.law or (973) 757-1107, Christopher Hemrick at chemrick@walsh.law or (973) 757-1033, or Sydney Darling at sdarling@walsh.law or (973) 757-1034.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Client Alert – Disabled Students May Be Entitled to Compensatory Education After COVID-19 Crisis
Client Alert – Disabled Students May Be Entitled to Compensatory Education After COVID-19 Crisis 150 150 walsh.law

On March 16, 2020, the U.S. Department of Education (“USDOE”) issued guidance addressing the risk of Coronavirus/COVID-19 in schools while protecting the rights of students with disabilities.  As a general rule, if school districts are serving students remotely, they must ensure that students who have Individualized Education Programs (IEP) or Section 504 Plans continue to receive a free appropriate public education.  Once school sessions resume, the USDOE has stated that certain students may be eligible for compensatory education for IEP services that were either not provided at all, or those that were provided remotely but proved to be ineffective.  Parents of these students should consider documenting whether and when these services were provided, the current level of their children’s progress at the onset of school closings and mark any regression that the student may have experienced. Audio/video technology can be a useful tool in capturing footage for documentation to be submitted to the USDOE.

Useful information for students with disabilities can be found in the links to the OCR Fact Sheet issued by the USDOE Office for Civil Rights and a Q&A sheet on providing services to children with disabilities during the COVID-19 outbreak.

For more information about Walsh’s Special Education practice or to seek information on how to implement best practices relating to Special Education, please contact Thomas J. O’Leary at (973)757-1045 or toleary@walsh.law.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Client Alert – Governor Phil Murphy Signs S2304 Into Law Expanding New Jersey’s Temporary Disability Insurance and Family Leave Insurance in Response to COVID-19 Pandemic
Client Alert – Governor Phil Murphy Signs S2304 Into Law Expanding New Jersey’s Temporary Disability Insurance and Family Leave Insurance in Response to COVID-19 Pandemic 150 150 walsh.law

On March 25, 2020, Governor Phil Murphy signed into law S2304, a bill intended to broaden the availability of access to benefits under the state’s Temporary Disability Insurance (“TDI”) and Family Leave Insurance (“FLI”) programs.  The law targets epidemic-related illnesses such as COVID-19 and makes a number of changes to the existing statutory scheme for state-issued disability insurance benefits, family leave insurance benefits, and use of accrued paid sick time.  The law went into effect immediately.

S2304 expands the definition of “serious health condition” for which an employee may obtain benefits for his own condition (TDI) or for the condition of a family member for whom the employees provides care (FLI).  “Serious health condition” now includes, during a state of emergency, an illness caused by an epidemic of a communicable disease, a known or suspected exposure to such a disease, or efforts to prevent the spread of that disease, which requires in-home care or treatment of the employee or a family member due to an order from a public health authority or healthcare provider.  The new law eliminates the current one-week waiting period for disability benefits in cases related to an epidemic.

The new law also expands New Jersey’s earned sick leave law to permit the use of paid sick time during a declared state of emergency.  Earned sick leave may now be used where the employee is unable to work because, during a declared state of emergency, the employee undergoes isolation or quarantine, or cares for a family member in quarantine, as a result of suspected exposure to a communicable disease and a finding by a healthcare provider or public authority that the presence of the employee or family member in the community would jeopardize the health of others.

While an employer generally may deny an employee earned sick leave in certain situations – specifically, where (1) the employee is salaried and among the top 5% highest paid employees, or one of the seven highest paid employees; (2) denial is necessary to “prevent substantial and grievous economic injury” to the employer; and (3) the employer provides notice of its intent to deny leave – under this new law, this section is inapplicable where the leave sought is due to an order that the employee or the employee’s family member remain isolated or quarantined at the direction of a health care provider, the Commissioner of Health, or other authorized official.  Further, the section does not apply where a “place of care” of the employee’s family member is closed due to a declaration of a state of emergency or other order during an epidemic or exposure, or suspected exposure, to a communicable disease.

For further information about these or other issues arising out of the COVID-19 crisis, please contact Tricia O’Reilly at toreilly@walsh.law or (973)757-1104, M. Trevor Lyons at mlyons@walsh.law or (973)757-1014 and Caitlin Cascino at ccascino@walsh.law or (973)757-1024.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Client Alert – U.S. Department of Labor Issues First Set of Regulations to the Families First Coronavirus Response Act
Client Alert – U.S. Department of Labor Issues First Set of Regulations to the Families First Coronavirus Response Act 150 150 walsh.law

On March 24, 2020, the U.S. Department of Labor (DOL) began issuing implementing regulations for the Families First Coronavirus Response Act (FFCRA).  The first set of regulations state that the effective date of the FFCRA is April 1, 2020, not April 2, 2020 as originally anticipated.

The regulations note that the small business exemption criteria will be addressed in forthcoming regulations.  They do, however, provide guidance as to determining if a business is under the 500-employee threshold for coverage, stating that the number encompasses full-time and part-time employees within the United States, including those on leave, temporary employees, and day laborers supplied by a temporary agency.  The Fair Labor Standards Act (FLSA) joint employer rule and Family and Medical Leave Act (FMLA) integrated employer test both apply.

On the calculation of hours worked by part-time employees, the regulations note that part-time employees are entitled to leave based upon their average number of work hours in a two-week period.  If the average is unknown or the employee’s schedule varies, employers are directed to use a six-month average, or for employees who have been working for less than six months, the number of hours the employer and employee agreed that the employee would work upon hiring.

The DOL regulations clarify that if an employee is taking paid sick leave and unable to work or telework because he (1) is subject to a federal, state, or local quarantine or isolation order related to COVID-19, (2) has been advised by a health care provider to self-quarantine due to concerns related to COVID-19, or (3) is experiencing symptoms of COVID-19 and is seeking medical diagnosis, the employee is entitled to two weeks of leave at his regular rate of pay up to $511 per day or $5,110 total.

If an employee is taking paid sick leave and is unable to work or telework because he is (1) caring for an individual who is quarantined as a result of a federal, state, or local quarantine or isolation order or under the advice of a health care provider, (2) caring for his child whose school or childcare is closed due to COVID-19 related reasons, or (3) experiencing any other substantially-similar condition that may arise, as specified by the Secretary of Health and Human Services, the employee is entitled to two weeks of leave and compensation at 2/3 of his regular rate of pay, up to $200 per day or $2,000 over the two-week period.

An employee who is caring for a child whose school or childcare is closed due to COVID-19 related reasons is permitted to take paid sick leave for the first ten-day period, then paid family leave for the following ten weeks, and the employee will be paid at a rate of 2/3 of his regular rate of pay up to $200 per day or $12,000 for the twelve weeks (encompassing both the paid sick leave and family leave).

Employees taking leave are paid at their regular rate of pay, which is calculated based on the average regular rate over a period of up to six months prior to the date of leave.  Commissions, tips, and piece rates are incorporated into the regular rate.

The regulations clarify that employees are limited to the leave totals in the FFCRA for any combination of qualifying reasons.  Further, while the FFCRA provides for an expansion of the Family and Medical Leave Act (FMLA), the only type of family and medical leave that is paid under the FMLA is leave that qualifies under the FFCRA.

U.S. Department of Labor Issues Required Posters for the Families First Coronavirus Response Act

On March 25, 2020, the DOL issued posters relating to the FFCRA.  The DOL included one poster for private employers and a second poster aimed at federal employees.

The DOL issued accompanying frequently asked questions.  The note that each covered employer must post the notice in a conspicuous place on its premises.  An employer may satisfy this requirement by emailing or direct mailing this notice to employees or posting it on an employee information internal or external website.

All employers who are covered by the FFCRA, including small business owners, are required to post the notice.  If employees report to office headquarters then go to different worksite locations, the FAQs provide that it is not necessary to display the notice at different worksite locations as long as employees are able to see the poster at the main office.  Where employees report directly to different worksite locations or buildings and not to a main office building, though, the employer must post the notices in each building.

For further information about the FFCRA, its implementing regulations, or other issues arising out of the COVID-19 crisis, please contact Tricia O’Reilly at toreilly@walsh.law or (973)757-1104, M. Trevor Lyons at mlyons@walsh.law or (973)757-1014 and Caitlin Cascino at ccascino@walsh.law or (973)757-1024.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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Client Alert – House Democrats’ Third COVID-19 Response Bill Includes $40 Billion for Schools and Universities
Client Alert – House Democrats’ Third COVID-19 Response Bill Includes $40 Billion for Schools and Universities 150 150 walsh.law

While negotiations continue on the United State Senate’s COVID-19 emergency relief bill, Democrats in the House of Representatives have unveiled their own stimulus plan.  The Democrats’ response bill, which is more than 1,000 pages long, proposes injecting some $40 billion into schools and universities to stabilize educational funding.

The Democrats’ counterproposal allocates $30 billion for a “State Fiscal Stabilization Fund,” to “prevent, prepare for and respond” to coronavirus.  The proposal vests the Secretary of Education with the authority to make grants to the Governor of each state for “support of elementary, secondary, and postsecondary education and, as applicable, early childhood education programs and services.”  For example, institutions of higher education receiving these funds “shall use funds for education and general expenditures and grants to students for expenses directly related to coronavirus and the disruption of campus operations,” or “for the acquisition of technology and services directly related to the need for distance learning and the training of faculty and staff to use such technology and services.”  Priority shall be given to “under-resourced institutions, institutions with high burden due to the coronavirus, and institutions who do not possess distance education capabilities.”  Further, under this proposal, $9.5 billion shall remain available to schools until September 30, 2020, to “prevent, prepare, and respond” to COVID-19.  The proposed bill includes limitations on payments, as well.  For instance, payments shall not be used to increase endowments, or for capital outlays relating to facilities for athletics or religious worship.

For more information, please contact Tricia B. O’Reilly at toreilly@walsh.law or (973) 757-1104 or Hector Daniel Ruiz at hruiz@walsh.law or (973) 757-1019.

 

Walsh Pizzi O’Reilly Falanga LLP has prepared the content of this alert for general informational purposes. The content should not be considered advice, recommendations, or an offer to perform services. You should not act upon any information provided in this alert without seeking professional legal counsel from an attorney licensed to practice law in your jurisdiction. No representations are being made as to the completeness or accuracy of the information contained herein.

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