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Public Sector Disability Pensions and Their Relationship to New Jersey Workers’ Comp

Many injured public employees in New Jersey retire on disability pensions (ordinary or accidental).  An accidental disability pension must be for a work injury.  An ordinary disability pension can be for non-work health issues, or work injuries or both.  This blog will focus on some of the key provisions which employers, third party administrators and practitioners need to know about ordinary and accidental disability pensions in the context of workers’ compensation cases.

Ordinary Disability Pensions for PFRS

To obtain an ordinary disability pension (hereinafter ODP) for a member of the Police and Firefighter Retirement System (hereinafter PFRS), one must be a member in service at the time the application is filed with the New Jersey Division of Pensions and Benefits (hereinafter NJDPB).  The applicant must have four or more years of service in the pension system and must prove he or she is totally and permanently disabled. That means he or she cannot perform the normal assigned job duties or any other position that the employer may assign.

The benefit is equal to 40% of the Final Compensation or 1.5% of the Final Compensation for each year of service credit (whichever is higher).  Final Compensation will depend on which Tier the employee occupies.  Tier 1 is for those enrolled on or before May 21, 2010; Tier 2 is for those enrolled after May 21, 2010 and before January 28, 2011; and Tier 3 members are enrolled after January 28, 2011.

Ordinary disability retirement benefits are subject to federal tax but not NJ State income tax until age 65.

Ordinary Disability Pensions for PERS and TPAF

For members of the Public Employees Retirement System (hereinafter PERS) and Teachers’ Pension and Annuity Fund (hereinafter TPAF), ordinary disability pensions are only available for those employees enrolled on or before May 21, 2010.

Unlike the PFRS, 10 years or more of New Jersey service credit are required for members of PERS and TPAF.  The annual benefit is equal to 43.6 percent of Final Average Salary or 1.64% of Final Average Salary for each year of service credit, whichever provides the higher benefit.

Workers’ Compensation Offsets

It is very important to understand that under workers’ compensation law in New Jersey, employers may receive an offset against ordinary disability pensions.  I will discuss the change in the law eliminating offsets for accidental disability pensions later in this article.

New Jersey employers may be entitled to an offset in a workers’ compensation case for an ODP if part of the reason for the employee’s ODP is a workers’ compensation injury.  Many ODP awards are filed by employees who have non-work-related conditions together with work-related conditions.  The offset, however, only applies to the work-related condition.  So, if the Division of Pensions and Benefits awards someone an ordinary disability for a work-related back surgery along with non-work-related respiratory and heart problems, only the back surgery will be considered for purposes of an offset.

Another important point to emphasize is that there is never an offset for monies that the employee puts into his or her retirement pension.  Those monies are called the annuity portion.  Any available offset is limited to the pension portion of the ordinary disability, which is usually most of the benefit.

Let’s consider two simple examples of offsets, and in both examples we will assume that the ODP was granted entirely for the workers’ compensation claim. The first example is from the very important Rosales case.

The permanency rate was $329.15 per week
The ODP was $673.95 per month
The annuity portion was $79.38 per month
The pension portion was $594.57 per month.

First, the $79.38 amount must be deducted as it represents the annuity portion, which cannot be offset. All that you need to do is convert the monthly pension figure of $594.57 to a weekly figure (multiply by 12 and then divide by 52 or 52.14 which is used by the Second Injury Fund).  That leads to a pension offset figure of $137.20 per week if you divide by 52. 

Comp rate                              $329.19 per week
Offset amount                        $137.20 per week
Amount due petitioner            $191.99 per week

So in the Rosales case, the workers’ compensation award was reduced by $137.20 per week as an offset against the ODP, and the public employer paid the award at a reduced rate of $191.99 per week.

Now let’s consider another case where we have a high-wage employee who receives a workers’ compensation award of 60% permanent partial disability or 360 weeks at $927 per week or $333,730. 

In this case, assume the ODP is $43,000 per year. The annuity portion is $5,000 per year, so that must be subtracted, leaving a potential offset of $38,000 per year.

To compute the offset, you convert the $38,000 per year figure into a weekly rate which comes to $730.76 per week. 

Comp rate                              $927.00 per week
Offset amount                        $730.76 per week
Amount due petitioner            $197.00 per week

You can see in this second example that offsets can make a huge difference in exposure for the public sector employer.  The public employer in the second example is saving about 80% of the award on account of the ODP.  Failing to consider the offset for the ordinary disability pension would cost the public employer over $265,000!

These examples are simple ones because we assumed that the ODP was entirely due to a workers’ compensation injury.  But often that is not the case.  Many public employees get an ODP for non-work-related conditions together with work-related conditions.  The parties must first attempt to gather medical records that may have been submitted to the Division of Pensions and Benefits. Respondent will need the petitioner’s application to the Division of Pensions and Benefits. Then the parties must attempt to negotiate what percentage of the ODP is related to just the work accident.  If only one third of the ODP is related to the work accident, then the public employer is only going to be able to consider one third of the ODP for purposes of potential offset.  When the parties cannot agree, the Judge of Compensation will make recommendations or may require testimony to decide what portion of the ODP is work related.

Accidental Disability Pensions for PFRS

An accidental disability pension (hereinafter ADP) is very different from an ODP.  First of all, there is no apportionment between non-work conditions and work conditions.  The accidental disability pension must be from a work injury, namely a traumatic event as defined by case law and regulations.  Benefits are higher than they are for an ODP.  There is no service requirement.  One could be injured seriously in the first month of employment and obtain an accidental disability pension if the proofs suffice.

As in an ODP, the public employee must prove that he or she is totally and permanent disabled from the work accident to obtain an ADP.  For PFRS, the benefit is equal to two thirds of the annual compensation on which pension contributions were being made at the time of retirement or at the date of the traumatic event, whichever provides the higher benefit.

Accidental disability pensions are not only more generous in payments but also treated better by the IRS.  Unlike an ODP, the member who receives an ADP is exempt from paying federal tax on the pension amount.  No state income tax is due until age 65.

Until 2022, public employers were settling workers’ compensation cases where the employee received an ADP with medical monitoring orders.  What that meant is the public employer was not paying any permanent partial disability benefits but only causally related medical benefits.  That practice, which continued for many years, ended more than three years ago. New Jersey Administrative Code 12:235-3.19 became effective March 7, 2022.  This regulation eliminated the practice of settling a workers’ compensation case involving an ADP by a medical monitoring order, with one exception discussed below. The regulation provides as follows:

  1. Both the workers’ compensation petitioner and the workers’ compensation respondent shall immediately notify the Division of Pensions and Benefits of the filing of the claim petition with the Division of Workers’ Compensation.

  2. Except at (a)3 below, the approval by a Judge of Compensation of a continuing medical monitoring settlement shall be prohibited and the worker’s compensation petition shall result in one of the following outcomes:

  1. The award by a Judge of Compensation of a monetary judgment after trial;

  2. The approval by a Judge of Compensation of a settlement agreement reached pursuant to N.J.S.A. 34:15-20 (Section 20 settlement)

  3. The approval by a Judge of Compensation of a settlement agreement reached pursuant to N.J.S.A. 34:15-22 (Section 22 settlement)

  4. The dismissal by a Judge of Compensation of petitioner’s claim after trial for failure of petitioner to meet their burden; or

  5. The dismissal by a Judge of Compensation of petitioner’s claim petition pursuant to N.J.S.A. 34:15-54 for lack of prosecution.

These changes were designed to require the public employer to pay whatever workers’ compensation awards are entered, thereby avoiding situations created by medical monitoring orders where the Division of Pensions and Benefits would keep paying the public employee without receiving an offset. 

The regulation permits one exception under (a)3.  “Where the workers’ compensation claim is for an occupational disease (for example, asbestosis), under appropriate circumstances based on the facts presented, and when not used in a way to avoid a pension offset, a Judge of Compensation may approve a continuing medical monitoring settlement…” In this practitioner’s experience, the NJDPB seldom awards accidental disability pensions in occupational cases. 

Despite the fact that these changes were enacted in 2022, the statute itself still provides that “No former employee who has been retired on pension by reason of injury or disability shall be entitled under this section to compensation for such injury or disability; provided, however, that such employee, despite retirement, shall, nevertheless, be entitled to the medical, surgical and other treatment and hospital services as set forth in RS. 34:15-15.”  This language, which remains unchanged, established the rationale for medical monitoring awards.

So where are we today?  The new regulation that became effective in March 2022 remains in conflict with N.J.S.A. 34:15-43 since the statute provides that public employers do not have an obligation to pay a permanency award when the public employee receives an accidental disability pension.  It is unclear why this conflict was not resolved in 2022.

It is also important to understand that the policy in New Jersey militates against double recovery to the public employee who receives workers’ compensation benefits and an accidental disability pension. After all, taxpayers fund public sector workers’ compensation claims and taxpayers also fund state pensions, so it makes sense that one cannot receive both.  Under procedures since 2022, when an award is entered in the Division of Workers’ Compensation for someone who has received an ADP, the workers’ compensation payment is not really going to the public employee.  Rather the payment serves to reimburse the Division of Pensions and Benefits.  How is this accomplished?  The NJDPB simply takes a dollar for dollar offset for every dollar that the employee receives in workers’ compensation. There is generally no financial benefit to the public employee in pursuing a workers’ compensation case when he or she receives an accidental disability pension. One exception, however, occurs when there is a gap period between the end of temporary disability benefits and the start date of the ADP for which permanent partial disability would be paid without offset.

Accidental Disability Pensions for TPAF and PERS

The accidental disability retirement benefit for TPAF and PERS is actually higher than the two thirds benefit under PFRS.  For TPAF and PERS, the amount is equal to 72.7% of the base salary at the time of the traumatic event. As with PFRS, the application must be filed within five years of the date of the traumatic event.  Most of the other provisions in accidental disability pensions for PFRS apply to PERS and TPAF.

If one applies for an ADP and is found by the Board of Trustees to be permanently and totally disabled, but not because of a traumatic event or the traumatic event was not the primary cause of disability, then an ODP will be granted but only for those who have 10 years of New Jersey service in the retirement system.

The definition of an accident that is a direct result of a traumatic event has been addressed by courts:

  • The event must be identifiable as to time and place;
  • The event must be undesigned and unexpected;
  • The event must be caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work);
  • The event must occur during and as a result of the member’s regular or assigned duties;
  • The event cannot be the result of willful negligence of the public employee;
  • The event must result in the member’s permanent and total incapacitation from performing his or her usual or any other duty.

There are other kinds of disability pensions which this article does not focus on.  Readers can contact the undersigned for further information.  There are provisions in all three pension systems for Accidental Disability for World Trade Center Responders, Involuntary Disability Retirement (where the employer applies on behalf of the recipient), and Special Disability Retirement.  There are also rules for possible adjustments in benefits due to employment of the member after retirement.

Appellate Division Affirms Finding of Joint Employment of Police Officer

Joint employment for workers’ compensation purposes is quite common in New Jersey.  Examples are employees who work for staffing agencies and professional employer organizations.  Another fairly common example is a police officer who does an extra-duty job assignment for a private company as approved by his or her employer.  The recent case of Vola v. City of Northfield, No. A-1627-23 ( App. Div. May 14, 2025) provides insight into this type of joint employment.

Officer Vola was approved by his department to perform an extra traffic duty assignment in response to a request made to the police department by Asplundh Tree Experts.  Vola reported to the police station on March 31, 2021, checked out a police car, and then proceeded to drive to the intersection at Burton Avenue and Jack Sloane Court to meet the Asplundh trucks and other police detail cars.  When Vola was making a k-turn to follow the Asplundh trucks, his vehicle was struck by another car, causing serious injuries to Officer Vola.

Vola brought a workers’ compensation claim against both the City and Asplundh. For its part, Asplundh denied the claim petition and moved to dismiss it.  The Judge of Compensation ruled against Asplundh.  First, the Judge of Compensation pointed to the municipal code for traffic control services to support a finding of joint employment. The code required payment by Asplundh to the police department for traffic control services. The code also specified that the private company requesting extra traffic control services must provide indemnification to the City, as well as a hold harmless provision. 

Asplundh also argued that the officer’s injury was barred by the premises rule because he was reporting to work and had technically not begun the traffic duty.  The Judge of Compensation disagreed.  He said, “This is not the usual coming or going scenario for which pre-employment travel might be deemed beyond the scope of a respondent’s liability. Rather, under the terms and design of this extra-duty assignment, one or both [Northfield and Asplundh] was obligated for injuries incurred by [Vola] from the moment he pulled out of the police headquarters with his marked patrol vehicle en route to the first or any of the tree-trimming assignments that day.”

The Judge of Compensation ruled that Asplundh was a joint employer at the time of Officer Vola’s injury, and both the City and Asplundh were jointly responsible for workers’ compensation benefits.  Asplundh appealed.  The Appellate Division first tackled the premises rule issue.  It said that the special mission exception to the premises rule applies when an employee is “required to be away from the conventional place of employment, if actually engaged in the direct performance of employment duties.”  The Court also relied on the case of Keim v. Above All Termite & Pest Control to support its reasoning, as petitioner was using an authorized vehicle at the time of his injury.  The Keim decision focused on the rule that an injury that occurs while using an authorized vehicle for business purposes constitutes an additional exception to the premises rule.

Next the Court addressed the principal issue of joint employment.  The Court found that the facts in this case were controlled by the 1989 decision in Domanoski v. Borough of Fanwood.  That case addressed the “whose interests are served” principle to establish joint employment for a police officer injured while performing an extra-duty assignment at an A&P store. The Appellate Division said, “Similar to Domanoski, Vola served the public interest of Northfield to ensure the safe and expeditious movement of traffic and the private interest of protecting Asplundh employees.”  Accordingly, the Appellate Division affirmed the decision of the Judge of Compensation. 

This case underscores that the determination of joint employment focuses on whether an injured employee in performing work is serving the interest of two or more employers.  Direct payment to the injured worker is not dispositive; nor is direct hiring.  Here Officer Vola was not getting paid directly by Asplundh and was not hired directly by Asplundh.  What mattered for purposes of a finding of joint employment was that he was engaged to provide for the safety of Asplundh employees while also discharging his duties to the police department and the residents of the City. 

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Third Circuit Upholds Use of Deadly Force in Attempted Arrest

While effectuating the arrest of Deshyamma Dalton (“Dalton”), detective John Caccia (“Caccia”) shot and killed Jacob Servais (“Servais”).  Servais’ mother, as Administrator of his Estate, filed a lawsuit against the law enforcement officers and agencies involved in the incident, claiming that Caccia’s use of lethal force against Servais was excessive force in violation of the Fourth Amendment.  The issue in Servais v. Caccia, 2025 U.S. App. LEXIS 11473 (3d Cir. May 13, 2025) was whether the use of deadly force was reasonable under the totality of the circumstances.

Officers John Caccia and Dallas Bohn had planned to apprehend the armed robbery suspect Dalton, as she returned a rental car.  Servais drove to pick up Dalton at the rental agency and backed into a parking spot on the side of the agency’s building.  Officers Caccia, Bohn, and Best surrounded him while a separate cohort arrested Dalton.  Caccia had parked his unmarked SUV “nose to nose” with Servais’ sedan with 2-4 feet between their front bumpers.  Best parked perpendicular to Servais on the driver’s side of Caccia’s SUV.

As the vehicles came to the stop, both Bohn and Caccia exited their vehicles.  Bohn exited on the passenger side and began yelling commands for Servais to surrender, while Caccia exited on the driver’s side, facing the passenger side of Servais’ sedan and also gave commands, while drawing his weapon.  However, Servais did not turn off the engine, exit his vehicle, or put his hands up.  Instead, he shook his head in response to one of Bohn’s commands. 

He then attempted to drive out of the parking spot, first driving forward toward Bohn and bumping the passenger side of the SUV.   Bohn moved to the right and out of the way.  Servais then reversed, became stuck in the parking block behind his vehicle and accelerated forward towards Caccia, who was standing near the front driver’s side of the SUV.  Fearing he was going to be run over by Servais’ vehicle, Caccia shot Servais three times through the windshield.  Servais reversed again, before succumbing to his injuries. 

Servais’ Estate brought a claim for his death, claiming excessive force under the Fourth Amendment.  To prove that claim, one must show that a seizure occurred and that it was unreasonable under the circumstances.  The reasonableness of the seizure under the totality of the circumstances would be “from the perspective of a reasonable officer on the scene, rather than with the 2020’s vision of hindsight” and “consider the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”  The Court further pointed out that “assessment of the threat of injury . . . is crucial to identifying the magnitude of the governmental interest at stake.”

The Third Circuit stated that “it was beyond dispute that Caccia’s use of deadly force was reasonable under the totality of the circumstances.”  The Court stated that it has long held that “an otherwise non-threatening individual engaged in vehicular flight is entitled to be free from being subjected to deadly force if it is unreasonable for an officer to believe his or others’ lives were in immediate jeopardy from their actions.”   However, the Court stated that “when the driver’s actions threaten imminent death or critical injuries, deadly force is permissible.”

The Court pointed out that Servais did pose a serious threat to Caccia’s life and limb.  Caccia was standing directly in front of an accelerating vehicle when he discharged his weapon, “only a few feet and moments away from a potentially life-threatening collision.” 

The Court further pointed out that Servais had failed to comply with the officers’ commands and, seconds earlier, had nearly struck Bohn with his vehicle.  As Servais turned and drove at Caccia, the Court found that it was reasonable for Caccia to believe that he was about to be struck as well.  The Court noted that in light of “Servais’ non-compliance, continuously threatening behavior, violent criminal record, and the immediate threat of a deadly collision, Caccia’s use of force falls within the narrow set of circumstances where use of deadly force is permissible against a moving vehicle.”

Hence, the Third Circuit upheld the District’s Court’s grant of summary judgment, dismissing the complaint.

The “Silk City”

It is a city conceived and created by one of the most famous Americans in history.  He is perhaps even more well known today than ever following the success of the eponymous Broadway show “Hamilton” created by Lin-Manuel Miranda.  Yet it is a city that surprisingly few New Jersey residents know much about.  The city is Paterson, located in Passaic County and founded by none other than the great Alexander Hamilton, who decided to make Paterson the first industrial planned community in the United States.  The city was named after the second Governor of the State of New Jersey, William Paterson, a lawyer and a jurist who was a signer of the US Constitution.  

Many of the cities that have workers’ compensation courts have experienced tremendous economic growth in the last two decades, including Jersey City, Newark, Camden, New Brunswick and others.  Paterson is a poor city.  Families have half the state average annual income, but the city may be on the verge of its own renaissance. The third largest city in the state, Paterson was founded in 1792 by Alexander Hamilton.  He could foresee what the Paterson Great Falls and its hydroelectric power could mean in developing much needed manufacturing in the United States.  Hamilton was a visionary. He and others who founded the “Society for Establishing Useful Manufactures” (S.U.M.) were in fact prophetic.  With the help of the S.U.M., Paterson did become a manufacturing powerhouse in the 19th century, manufacturing silk, locomotives, paper and firearms.  It was known for decades as the leading manufacturing center in the United States for silk:  hence the moniker, the “Silk City.”   It fell on harder times in the mid-20th century. 

As far as workers’ compensation courts go, Paterson is the only New Jersey comp court which is a few blocks from a National Park.  The Paterson Great Falls is part of the National Park System, and the Falls are the second largest by volume of water east of the Mississippi.  The waterfall views are simply spectacular.  More and more visitors come to see the Falls, and they visit the nearby Paterson Museum which displays the industrial history of the city, Garret Mountain Reservation, Lambert Castle and the recently renovated Hinchliffe Stadium.  All of these sites are close to workers’ compensation court.  On one visit I made to the Falls in 2017, a bus from a private school in Lakewood, N.J. brought high school students to the Falls.  I spoke with some of the students, and they were astounded that such a beautiful national park and falls were located in the center of North Jersey.

One of the strengths of the city is that it has great diversity with a large Latino community, black community, white community, and the largest Middle Eastern community in New Jersey, which is centered in South Paterson.  In fact, the Mayor of Paterson is of Middle Eastern heritage.  Each generation of immigrants that has settled in Paterson has left its mark over the centuries.  More residents of New Jersey and visitors to the state need to know about the unique history of Paterson.  They need to know about the many great Americans who lived or worked in the city, including Lou Costello, the famous comedien; Allen Ginsberg, a highly acclaimed poet raised in Paterson; Larry Dobe, who grew up in Paterson where he played high school baseball and along with Jackie Robinson helped break the color barrier in baseball while playing in the American League;  Michael Jace, a very talented actor, and William Carlos Williams, an immensely talented writer and poet who wrote the poem “Paterson,”  which consists of five books published between 1946 and 1958.  There are many, many more famous Patersonians.

From a personal standpoint, I am rooting for the Paterson renaissance, as my mother and her family lived in the city, my sisters were all born at St. Joseph’s Hospital, my father worked there for 40 years, in fact co-founding what was then the largest law firm in Passaic County located in 100 Hamilton Plaza, site of the present workers’ compensation court, and my grandfather was a Superior Court Judge in Paterson. 

If you have read this far, at this point you have undoubtedly begun to wonder, “John, what does this blog have to do with workers’ compensation anyway?”  Well, at first glance perhaps not much but maybe more than you might think.  There are only 15 venues where workers’ compensation cases are heard, and each court is located in a city or municipality with its own interesting and developing history.  The Division judges, court personnel, security professionals, thousands of lawyers around the state, adjusters, translators, stenographers, petitioners, respondents and many doctors regularly work in or visit the 15 workers’ compensation courts. They park their cars there, buy coffee there, make friends there, shop there, and dine in restaurants there. They may become in time part of the fabric of the communities that host the 15 workers’ compensation courts in the state.

One could say that we in the world of workers’ compensation play a small role individually but a larger role collectively in contributing to each of the cities and municipalities where the Division carries out its vital business.  As for the City of Paterson, don’t forget to put it on your bucket list. 

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U.S. Supreme Court Rules Affirmative Action in College Admissions is Unconstitutional

By: Gabi Aste-Molina, Law Clerk

Editor: Sanmathi (Sanu) Dev, Esq.

On June 29, 2023, the Supreme Court held in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College that race cannot be a factor in college admissions because it violates the Equal Protection Clause of the Fourteenth Amendment.

Students for Fair Admissions (“SFFA”) filed separate lawsuits against two highly selective universities: Harvard College and the University of North Carolina (“UNC”) in November 2014, alleging that these institutions’ admissions systems violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment by considering race as a factor. The District Courts conducted bench trials in both cases to assess whether race-conscious admission programs violated Title VI and the Equal Protection Clause.

The District Court concluded that Harvard’s race-based college admissions program was constitutionally permissible. The First Circuit affirmed. The District Court concluded that UNC’s use of race in admission was permissible under the Equal Protection clause. The Supreme Court then granted certiorari in both cases (before judgment from the Fourth Circuit in the UNC case).

The Supreme Court explained that judicial precedent allowed college admissions programs to consider race only if such programs complied with narrow restrictions. According to the majority opinion, race-based admissions programs must pass strict scrutiny, cannot use race as a negative against non-diverse applicants or to stereotype people of color, and must, at some point, end. The Court held that both Harvard and UNC’s admissions programs failed all three criteria, and thus their race-conscious admissions violated the Equal Protection Clause.

First, the Court held that the race-based admissions programs could not be evaluated under strict scrutiny. The Court said that Harvard and UNC did not provide compelling interests sufficient to warrant strict scrutiny review stating that, for example, training future leaders was not a measurable goal. Further, the Court stated that the “admissions programs fail to articulate a meaningful connection between the means they employ and the goals they pursue.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, slip op. at 24 (U.S. June 29, 2023). On this point, the majority opinion stated it was unclear how Harvard and UNC could measure educational benefits stemming from diversity when they use broad racial categories for its student racial composition.

Second, the Court held that race-conscious admissions run afoul of the Equal Protection Clause by using race as a “negative” against non-diverse applicants and to stereotype racial minorities. Id. at 27. The Court noted that the Fifth Circuit found Harvard admitted less Asian American students and that colleges cannot afford some applicants a benefit that others do not receive because college admissions are zero-sum. In addition, the Court stated that considering race in college admissions is stereotyping because a university “engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.” Miller v. Johnson, 515 U.S. 900, 911-12 (1995).

Finally, the Court stated that race-based admissions must have an end point. The Court disagreed with the universities’ assertion that race-based admissions would end when “there is ‘meaningful representation and meaningful diversity’ on college campuses.” Students for Fair Admissions, slip op. at 30. The Court pushed back stating that comparing the racial breakdown on campus is no different than racial balancing, which is unconstitutional. Fisher v. University of Tex. at Austin, 570 U.S. 297, 311 (2013).

At the end of the opinion, the Court noted some exceptions. College admissions may still consider how race has impacted an applicant’s life. The Court stated, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Students for Fair Admissions, slip op. at 39. In addition, military academies may still consider an applicant’s race for admission.

Navigating Cannabis Regulations and Employment Law in New Jersey

Legalization of Cannabis in New Jersey:

In November 2020, New Jersey residents voted in favor of the legalization of adult-use cannabis. The New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA”) was subsequently enacted to regulate the cultivation, distribution, and use of cannabis in the state. While NJCREAMMA allows employers to randomly drug test, screen applicants, and do routine testing of current employees, it is limited to testing for marijuana use during work hours.In addition, in order to find misconduct of cannabis use by an employee, the “ordinary”[1] test(s) and the “expert” both have to find the employee was impaired during work hours – which is intricate in itself. Unlike alcohol, marijuana can remain in a person’s blood system for a long period of time. Intoxication experts will be dealt with in the forthcoming sections, but concrete guidelines have yet to be released by the New Jersey Cannabis Regulatory Commission (the “CRC”).

Further, many issues that may arise include but are not limited to disability discrimination and accommodation issues, drug testing rights and responsibilities, state and federal statutory and regulatory compliance matters, workplace safety questions, varied obligations pertaining to government contractors, intoxication “expert” requirements, workers’ compensation implications, and employee privacy protections.

Employee Rights and Employer Responsibilities:

    a. Workplace Drug Policies: Although cannabis is legal for adult use in New Jersey, employers retain the right to maintain a drug-free workplace. Employers can establish and enforce drug policies that prohibit cannabis use during work hours or on company premises. In today’s age, it is essential employers maintain clear and concise policies that align with the proposed guidelines from the CRC under NJCREAMMA.

    b. Drug Testing: Employers in New Jersey are still permitted to conduct drug testing for cannabis (and other substances) as part of their pre-employment screening or during random, post-accident, or reasonable suspicion testing. However, it is critical to ensure drug testing policies comply with existing laws and are applied consistently to avoid potential discrimination claims.

    c. Medical Marijuana: New Jersey’s Compassionate Use Medical Marijuana Act (“CUMMA”) protects qualified patients’ rights to use medical cannabis. Employers should engage in an interactive process with employees to determine the extent of ones’ use. Cannabis use during “on the clock” work hours remains forbidden, and a terminable employment action, under applicable state law. An employer is not required to accommodate medical marijuana use in the workplace, during work hours, or while operating, navigating or physically controlling a vehicle in the performance of job duties. Employers should consult with a legal professional if they find employee pushback under the state’s medical marijuana program.

    Off-Duty Cannabis Use and Employment:

    a. Non-Discrimination: The NJCREAMMA explicitly states that employers cannot take adverse employment actions against individuals based solely on their status as a cannabis consumer or their participation in the state’s legal cannabis program. This means that off-duty cannabis use, within the boundaries of the law, should not be grounds for hiring, termination, or discrimination – unless it would violate a federal law, contract, or funding agreement.

    b. Current Rights and Remedies: There is skepticism within New Jersey as to who can bring a cause of action under NJCREAMMA and what remedies are available. According to a recent decision from a New Jersey federal court, NJCREAMMA does not provide aggrieved employees with a private right of action and remedy. In this recent decision (which is pending on appeal), Zanetich v. Wal-Mart Stores East, Inc d/b/a Walmart, Inc., et al., the New Jersey District Court clarified that only the state’s Cannabis Regulatory Commission (CRC) – and not private citizens – has the authority to enforce NJCREAMMA.

    Specifically, in this matter, the plaintiff applied for a job at a Wal-Mart store in New Jersey. Wal-Mart offered him the job subject to successful completion of a drug test. However, after his drug test revealed the presence of marijuana in his system, Wal-Mart rescinded the job offer. As a result, the plaintiff filed a class-action lawsuit alleging two claims: (1) violation of NJCREAMMA and (2) failure to hire and/or termination in violation of New Jersey public policy. The defendants moved to dismiss the complaint, arguing that NJCREAMMA does not explicitly provide a private cause of action and that New Jersey common law does not recognize a cause of action based on an employer’s failure to hire. In short, the court agreed and called upon state lawmakers to “amend the statute to clearly evidence” an intent to create a private cause of action, “as it has previously done in many other employment related statutes.” The appeal will likely not be the final declaration and comment on this issue, and developments remain to be seen. But, for now, this is a victory for employers across the state.

    c. Impairment in the Workplace: While employers cannot discriminate against employees for off-duty cannabis use, they maintain the right to address impairment in the workplace. If an employee’s cannabis use affects their performance, compromises safety, or violates workplace policies, employers may take appropriate disciplinary action. With that being said, the CRC recently issued interim guidance of workplace impairment.

    d. The Guidance and “WIRE” Experts: NJCREAMMA, provides guidance on drug tests that include “scientifically reliable objective testing methods and procedures, such as testing of blood, urine, or saliva” anda “physical evaluation,” which must be conducted by a Workplace Impairment Recognition Expert (“WIRE”). The law gives the CRC the power to issue regulations establishing certification standards for WIREs, but none have been issued to date.

    In September of 2022, the CRC issued its impairment guidance with a sample Reasonable Suspicion Report Form (“Form”) – which can be found here. However, they stated, for now, employers need not use a WIRE to conduct a physical evaluation to determine suspected cannabis use or impairment during work hours (this is solely because the WIRE certification standards have yet to be published or established). The standards should be coming down from the CRC in the imminent future.

    At this time, an employer should know they are still prohibited from taking adverse action solely because an employee has cannabis metabolites in their system, but should always consult with a lawyer to discuss the specifics of the matter. Moreover, employers should be proactive and begin using the sample report Form (employers are permitted to use their own form if they wish to do so), update their employee policies in accordance with the CRC guidance, and begin training or hiring employees who can determine cannabis intoxication during work hours.

    Employer Obligations and Workplace Safety:

    a. Safety-Sensitive Employees: Employers have a responsibility to ensure a safe working environment, particularly in safety-sensitive positions such as operating heavy machinery or handling hazardous materials. “Safety-sensitive” generally means that a position involves some aspect of a heightened danger that requires an employee’s full and unimpaired skills and judgment to safely execute his or her job. New Jersey effectively prohibits employers from taking adverse action against employees or job applicants based solely on a positive marijuana test, even if the position at issue would otherwise qualify as safety-sensitive.

    If an employee is found to be impaired by cannabis at the time of a workplace accident (safety-sensitive or otherwise), the employer may have substantive grounds to contest a workers’ compensation claim and the related fault issues. These intoxication issues concerning a workplace incident should always been discussed with a lawyer well-versed in the space.

    b. Federal Employees/Contracts: Moreover, the interim guidance from the CRC notes that certain employers may be required by federal contract or law to follow specific protocols related to determining reasonable suspicion and drug testing and they are expressly permitted to continue doing so. Additionally, employers must incorporate, and comprehend, the soft guidance in a manner that complies with federal anti-discrimination laws, federal positions, or other federal regulations.

    i. Note on Federal Contracts: N.J.S.A. 24:6I-52b(1)(b) specifically provides that if it is determined that any of the provisions set forth in that section of the law result in a provable adverse impact on an employer subject to the requirements of a federal contract, then the employer may revise their employee prohibitions to be consistent with federal law, rules, and regulations. As such, employers may be required by federal contract or law to follow specific protocols related to determining reasonable suspicion and drug testing and are permitted under N.J.S.A. 24:6I-52 to continue to do so.

    c. Reasonable Suspicion: Lastly, employers have the right to address employee impairment and can take action if there is reasonable suspicion that an employee’s cannabis use is affecting their job performance or safety. However, it is crucial to handle such situations delicately and follow established protocols to avoid potential legal pitfalls. As discussed above, the ordinary blood, urine, and saliva tests are not permissible on their own to determine impairment because of the discrepancy between use and intoxication, and how long THC remains detectable in the body. This is how cannabinoid use differs from alcohol use and detection.

    As the sample Form outlines, the following are some of the factors/indicators that should be considered when one presumes reasonable suspicion of cannabis use of another: red/bloodshot eyes; flush/pale/sweaty face; dry mouth; disheveled appearance; agitated/insulting speech; uncharacteristically talkative; sleepy/stupor; anxious/fearful; loss of inhibition; and swaying/stumbling/staggering. It is clear these indicators remain highly subjective and suggestive, and will likely bring a slew of additional obstacles to the legal playing field.

    Similarly, the drug testing method now recommends a blood, urine or saliva test along with a physical evaluation of the employee to determine (and prove) current impairment. At this time, until WIRE standards are published, it is recommended that employers designate an “interim staff member” or contractor to assist with determinations of suspected cannabis use. It is also strongly encouraged to document evidence/proof of impairment in the workplace to support the use of a drug test to confirm reasonable suspicion.

    As New Jersey embraces the legalization of cannabis, employers and employees must navigate the evolving landscape of cannabis and employment law. It is understandable that many employers are left trying to make sense of how to comply with CREAMMA and this “optional” interim guidance.  Once the CRC issues concrete guidance and publishes the standards and qualifications for WIREs, then employers (and employees) should become well-rounded and highly educated on these regulations. Understanding the rights and responsibilities associated with cannabis use in the workplace is essential for maintaining a productive and legally compliant work environment.

    In sum, by adhering to pertinent state laws, establishing clear drug policies, and ensuring fairness and consistency, employers can strike a balance between employee rights and workplace safety in the era of legalized cannabis. Understanding the nuances of cannabis-related employment laws is vital to ensure compliance and foster a harmonious working environment for all parties involved.

    Disclaimer: The information provided in this attorney blog post is for general informational purposes only and should not be considered as legal advice or a substitute for professional legal counsel. No attorney-client relationship is established by accessing or reading this blog post, and any communication or information exchanged through this platform is not confidential or privileged. The content presented here is solely for informational purposes and should not be attributed to any affiliated entity, organization, or company. The accuracy, completeness, and applicability of the information presented in this blog post cannot be guaranteed, and readers are advised to consult with a qualified attorney regarding their specific legal issues or concerns.

    Reprinted with permission from the June 26, 2023 issue of New Jersey Law Journal. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited.  All rights reserved.

    [1] The “ordinary” test(s) refer to those that have been administered over the years to detect and establish intoxication of persons. These tests often include the standard blood, urine, and/or saliva tests.

    The post Navigating Cannabis Regulations and Employment Law in New Jersey appeared first on NJ Workers' Comp Blog.

    Caller Unknown

    Telephone scammers are getting better and better; using fear tactics to elicit irrational and immediate results.  This happened to someone close to me just a few months ago.

    It was late night for this victim, after 9 p.m., which for the typical person in their 80s is like 2 a.m. for the rest of us!

    The caller claimed they had the victim’s granddaughter and demanded money for her release.  The screams of a teenage girl, in hindsight no doubt a computer simulation, begged their grandparent for help.  The victim responded by leaving the safety of their home to purchase gift cards as had been directed by the caller. They then provided the redemption information for the gift cards to the caller via text.

    This took place despite the victim’s calls to their family to confirm the safety of their granddaughter and receipt of reassurances from the family that all was well. The scammer was so convincing that the victim succumbed to the fear and pressure of the situation.

    These events are called “spoofer calls” and are specifically targeted at the elderly/grandparent population.  How can this type of crime be avoided?  The simple answer is don’t answer calls from unknown numbers.  But for many reasons this often does not happen and is too simplistic of a solution. 

    So, consider these additional tools to help protect your loved ones from falling victim to these sorts of scams:

    • Awareness.  Talking about this scam (and similar events such as people coming to the door regarding roof repairs, etc.) and educating family members will go a long way to calm the nerves of a potential victim.
    • Privacy Settings.  Facebook, Instagram and other social media platforms allow for the immediate sharing of photos and connection with loved ones.  But these sites also allow scammers to mine personal information.  Maximize account privacy settings to minimize the potential that a scammer will know who to impersonate.
    • Call Blocking.  By engaging tools to block unknown callers, you can force a scammer to voicemail.  A voicemail will allow the recipient the time to listen to the message and call another family member for help.  Check with your cell provider to identify the security and safety tools available.

    WELLNESS

    Written by: Yasmeen S. Khaleel, Esq. and Renee C. Vidal, Esq.

    Last month, our faithful friend Punxsutawney Phil saw his shadow which promises six more weeks of winter.  This is a time of year when people often feel dull and depressed.  Therefore, it is a great time of year to remind everyone of the importance of wellness.

    A good friend with expertise in helping others achieve wellness recently informed me that wellness is the “the act of practicing healthy habits on a daily basis to attain better physical and mental health outcomes.”  They said the goal is not “surviving” but rather to “thrive.” Take this into consideration for those who are or are caring for the disabled, elderly or infirmed.  The wellness of the care provider is critical to the care of the disabled, elderly or infirmed.

    To this end, that same friend gave me four guidelines to live by and I now share them with caregivers out there:            

    1. Know your limits.  Self-care is not selfish.  Say when!
    2. Know how to meditate.  Meditation helps you stop and breathe and allows your mind time to focus.  It helps fosters awareness and attention and helps you find a mentally clear and emotionally calm and stable state.  It also helps relax our typical “knee-jerk” fight or flight response to challenges.  Finally, it helps stimulate your brain to produce melatonin and serotonin without the need of a co-pay or appointment or medication/supplements.  These are the key hormone and chemical to help with sleep and key body functions as mood, sleep, digestion, nausea, wound healing, bone health, blood clotting and sexual desire.
    3. Get physical.  Stand, stretch, walk exercise, clean or dance!  Just move!
    4. Know your experts.  Don’t go it alone.  Instead, assemble your people; whether those are professionals or family/friends who can help with medical issues, physical and nutritional well-being and yes, legal matters.

    As “counselors of law,” we pride ourselves in guiding our clients to the best possible results.  A “counselor of law” is generally a professional who provides advice and deals with various issues, particularly those involving legal matters.  This is a more expansive definition than simply “lawyer” which narrowly describes a professional engaged in the practice of law. 

    As counselors of law, our goal is to both provide advice on matters of legality and help with the application of that advice for our clients.  That often involves assembling the best team possible for our clients.  This is best illustrated in our files for the disabled, infirmed or elderly.  Our advice in such matters extends beyond the possibly incapacitated person and extends to the caregivers as appropriate and necessary.  Wellness matters; make the effort to give it the time it deserves.

    FTC Proposed Rule Would Ban Virtually All Non-Compete Restrictions.

    On January 5, 2023, the Federal Trade Commission (FTC) announced a proposed rule that, if adopted, would result in a near-total nationwide ban on the use of non-compete agreements. If enacted as presently drafted, the FTC’s proposed rule would preempt current state laws on non-compete agreements and further require employers to rescind all existing non-compete provisions within 180 days of the publication of the final rule.

    The FTC’s proposed rule prohibits employers from requiring non-compete agreements from workers, with limited exceptions, based on the FTC’s initial finding that non-compete agreements constitute an unfair method of competition. The present actions of this agency are quite controversial because, historically, the FTC has never attempted to regulate non-compete agreements between employers and employees as this issue has been left for the states to address themselves.

    While the proposed rule does not explicitly prohibit other forms of restrictive covenants, such as non-disclosure agreements or non-solicitation agreements, it cautions that those alternative restrictions can be so broadly drafted to have the same effect as a non-compete and can in essence be a de facto non-compete agreement. As such, the proposed rule prohibits the use of any form of agreement that has the effect of prohibiting workers from seeking or accepting new employment, no matter what it may be labelled by the employer.

    The FTC is presently accepting public comments on the proposed rule through March 10, 2023. Certain businesses, trade groups, and factions of Congress have already expressed their opposition to the proposed rule and its broad impact. In addition, there will in all likelihood be lawsuits filed challenging the FTC’s authority to ban non-compete agreements. Thus, all need to stay tuned to see what happens with the FTC’s rule and whether it will ever in fact go into effect.

    It is also worth noting that the FTC’s actions come on the heels of similar measures that have been passed by various states that have already placed limits on when non-competes are available from employees and are enforceable.

    New Jersey is now attempting to join that ever expanding group of states that are imposing restrictions on non-compete agreements. Assembly Bill A3715 would impose stringent requirements on New Jersey employers seeking to restrict their employee’s post termination activities, limit the permissible scope and enforceability of certain restrictive covenants, and increase the cost of enforcing the terms of the covenants by requiring full pay and benefits to the ex-employee during the term of the restrictive covenant.

    The proposed bill would, inter alia, limit the term of a restrictive covenant to 12 months, limit the geographic boundaries to the employer’s “material presence,” require notice of the restrictive covenant within 30 days of the start of employment, mandate that the employer provide notice within 10 days of termination that the employer intends to enforce the restrictive covenant, and provide full pay and fringe benefits to the employee while the covenant is being enforced. There is also a blanket prohibition on restrictive covenants for certain classes of employees, including all nonexempt employees under the FLSA, low wage employees and employees who are laid off or terminated for reasons other than misconduct. Finally, the bill would end “no poach” agreements—those agreements between competitors not to solicit employees from one another. The FTC (along with issuing the above discussed rule) has also begun bringing litigation against companies that utilize such anti-poaching restrictions to prevent enforcement of such restrictive provisions.

    The current status of A3715 remains in limbo. It was voted out of the Assembly Labor Committee on May 19, 2022. Like the proposed FTC rule, there has been significant criticism of the proposed bill from employer groups and other lobbying organizations. Given New Jersey’s current administration in Trenton, and how it has traditionally been a very pro employee state, one can expect that it is only a matter of time before New Jersey joins the increasing list of states limiting non-compete agreements, whether through this bill or some alternative version.

    As with all significant possible legal changes, we will continue to monitor these matters, and keep everyone abreast of any additional developments.

    Reverse Mortgages

    So, you have heard of Reverse Mortgages, but do you really understand what they are and how they can be helpful?  Like most things – you hear good and bad comments about them.

    A reverse mortgage is unlike a purchase money mortgage or a refinance mortgage.  So, what’s the difference? 

    When someone buys real estate, they may secure the funding for the same by way of a purchase money mortgage to finance the purchase.  A refinance mortgage is one where there is already a mortgage secured by real estate, but there may be a reason to refinance – lower interest rates, shorter term equity from the property.  In each of those cases, payments begin usually about a month after the mortgage has been disbursed or closed.

    Whereas, a reverse mortgage is one in which the payments do not begin at the time the mortgage is funded.  The mortgage is not disbursed in full.  Rather, the mortgage paperwork is done and no withdrawal of funds is made until requested.  Payments can be either on demand or on a periodic basis.  Interest accrues on the mortgage and is added to the principal but no payments are required until the date set forth in the terms of the loan.  Usually, no payment is due until the borrower dies or permanently moves from the home.  At that time, the payoff will be only based on funds actually received, not on the maximum amount allowed to be withdrawn. 

    Unlike conventional financing, reverse mortgage eligibility is geared specifically for lower income seniors.  Other eligibility qualifications are that the borrower must be at least 62 years old, the maximum amount that can be borrowed is limited to a percentage of the value of the home and your equity is the same due to existing encumbrances on the property. 

    If you have a loved one who owns their residence and is in need of cash for their care, careful consideration should be given to selling their home and relocating or remaining in their home and getting a reverse mortgage.  This is important if there could be capital gains tax if the property is sold.  While the IRS has provisions to shelter gains of up to $250,000 per individual, New Jersey and Pennsylvania do not have the same exclusion and could result in significant taxes.  Currently, if someone dies owning real estate at the time of their death, a “step-up” in basis is given to the value at the time of death.  The amount of the “step-up” in basis is determined by how the real estate is owned. 

    If you feel a reverse mortgage may be something that could help a homeowner, just as with most things – do your homework.  Investigate the current rates, the repayment terms, and the costs involved in putting a reverse mortgage in place.  Compare the options of a reverse mortgage vs. a home equity line of credit.  What are the income requirements for the various types of loans?  What are the tax consequences? 

    Only then will an educated determination be able to be made in the best interest of the homeowner. 

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