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First Aid Squad Responders Found to Be Immune from Liability for Injury Allegedly Caused by Negligent Transport of Patient

Plaintiff Rose Bengel was allegedly injured as a result of medical assistance provided by defendant Holiday City at Berkeley First Aid Squad, Inc. (“the Squad”). The Squad had responded to a 9-1-1 call for medical assistance and transported her to the hospital. The issue in Bengel v. Holiday City at Berkeley First Aid Squad Inc., 2020 N.J. Super. Unpub. LEXIS 2374 (App. Div. Dec. 11, 2020) was whether the defendant Squad and its first responder members were immune from liability pursuant to statute.

In response to a 9-1-1 call, the Squad arrived at the Bengels’ home to assist Rose Bengel (“Rose”), then 86 years old. The Squad members were advised by her home health aide that she had been wheezing and had pink eye since recently arriving home from a nursing home. Rose was non-ambulatory, being confined to a wheelchair from muscular dystrophy for decades. They had to lift her from her wheelchair to a stretcher to transport her to the hospital.

The plaintiff alleges that the Squad members negligently injured Rose in the process of lifting her, causing her to suffer a rotator cuff tear in her left shoulder. Due to her age, surgery was not recommended and it was contended that Rose’s use of her left hand and arm became more limited after this incident.

The Squad disputed that they caused any injury to Rose in the process of transferring her to the stretcher. They claim that they gently lifted her from her wheelchair, wrapping their arms around her abdomen and feet and sat her on the stretcher.

The Squad moved for summary judgment, arguing that they had statutory immunity against claims of negligence. The Plaintiff argued that the statutory immunity did not apply because it was not an emergent situation and the Squad failed to demonstrate their actions were in good faith.

The trial court judge granted the Squad and its member responders a summary judgment dismissal. He noted that the Squad was one of the 4 volunteer first aid squads in Berkeley Township and its members were first responders certified to provide Basic Lift Support Services. The judge applied the statutes, N.J.S.A. 2A:53A-13, N.J.S.A. 2A:53A-13.1, and N.J.S.A. 26:2K-29, which “immunized volunteer rescue squads and members from civil liability when providing emergency public first aid or intermediate life support services in good faith.”

The judge found that the Squad members were engaged in public first aid rescue services as they were responding to a 9-1-1 medical emergency call. Although Rose’s condition may not have been life threatening, that did not make the call “non-emergent.” Further, the judge held that there was no evidence that any such injury suffered by Rose was with intent or bad faith of the Squad members.

The plaintiff appealed this summary judgment dismissal to the Appellate Division. The appeals court agreed with the trial judge that the Squad and its members who transported plaintiff qualified for statutory immunity from civil liability. More than negligent conduct would need to be proven to find that the Squad members failed to act in “good faith” or acted in a “willful or wanton” manner.

Thus, even if the Squad members were negligent in lifting Rose and caused her shoulder injury, the Appellate Division found that such actions did not strip the Squad and its members from their statutory immunity. Finding that, at worst, the Squad members were negligent, the Court upheld the trial court’s order granting summary judgment to the Squad and its members.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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COVID-19 and the Holidays

With the holiday season now upon us, there are growing concerns about how the COVID-19 pandemic could worsen because of the expected social gathering activities associated with the holiday season, and how that could impact New Jersey workplaces. The Centers for Disease Control (“CDC”) has already issued directives that persons should not travel during the holiday season, and that they should likewise keep their gatherings small (ideally limited to their own households), and where possible, keep them outside to maintain good social distancing. In light of the CDC’s directive, I have gotten several questions from clients about what employers can do to ensure that their employees follow such directives and engage in safe behavior during the upcoming holidays. The answer to those questions will likely surprise you.

Believe it or not, even in a place like New Jersey which is very pro-employee, employers can actually demand that their employees refrain from travelling during the holiday season, and likewise minimize their social contacts and holiday gatherings, even when such conduct is happening outside of working hours. Why? Because of the public health crisis caused by COVID-19, employers have a right (and some would say a legal duty) to safeguard their workplaces, and in light of the CDC directive against holiday travel, employers can mandate no employee travel and likewise require that employee family and other related social gatherings also adhere to CDC recommendations. Employers have been given a great deal of latitude during this public health emergency in taking steps to protect the workplace, and requiring employees to adhere to the recent CDC directives fall within the scope of that discretionary authority.

So, in light of the above, are you telling me that as an employer, I could actually discipline or even fire an employee who fails to follow the CDC recommendations? My answer: absolutely.  Most employees in New Jersey are at will, meaning that an employee can be fired for any reason, or no reason at all, so long as it is not an illegal reason. There is no legal prohibition in New Jersey that would prevent an employer from firing or disciplining an employee who refuses to adhere to an employer directive that an employee not travel during the holidays and/or minimize their family gatherings in light of the concerns raised by the CDC. Some states like Colorado and California have laws that prevent employers from firing employees for doing lawfully allowable things outside of work hours, but New Jersey has no such law. Thus, if an employer wants to mandate that its employees follow what the CDC has mandated about travel and social gatherings during this holiday season, employers in New Jersey are free to impose such requirements, and may issue appropriate discipline if employees fail to follow such requirements.

So, employers here in New Jersey have one more tool to use in protecting the workplace while the COVID-19 pandemic continues to wreak havoc on day to day life.

I wish everyone a safe and happy holiday season.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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DOT Contractor Entitled to Tort Claims Act Immunity as Defense in Personal Injury Action

Plaintiff Robert Koehler was injured while driving near an overpass on Route 3 in Rutherford, New Jersey when the boom of a bucket truck, which was in tow, struck the overpass, flew off, hit the roof of Plaintiff’s vehicle and entered the sunroof, causing his injury. The overpass was located in a construction zone. The issue in Koehler v. Smith, 2020 N.J. Super. Unpub. LEXIS 1855 (App. Div. Oct. 1, 2020) was whether the DOT’s general contractor, defendant Creamer Sanzari, was entitled to Tort Claims Act immunity for this accident.

The overpass was not marked with a low clearance sign before the accident and the plaintiff claimed that the defendant general contractor (“GC”) should be liable for his accident when the truck hit the overpass. The defendant, however, claimed that it was entitled to Tort Claims Act traffic sign immunity and design plan immunity.

On the trial court level, the defendant GC filed a motion for summary judgment, which was granted. While the trial court judge concluded that the defendant was not entitled to design plan immunity, he held that the defendant was entitled to traffic sign immunity and granted the defendant’s motion for summary judgment.

Upon appeal, the Appellate Division noted that the plaintiff’s expert admitted in deposition testimony that it was the design engineer’s responsibility to ascertain that the project’s plans and specifications were correct and that there was an issue whether the contractor was authorized to affix a low clearance sign to the bridge and that the requisite signs should have been addressed before the project began. The Court also stated that “[t]here was no dispute that the traffic control patterns were designed by the DOT and its engineers, and defendant carried out those patterns according to the plans and specifications.”

The contract setting forth the duties of traffic control as to the GC did not relate to permanent conditions such as the overhead height at issue and the lack of signage. The overhead height was not being altered as part of this project. The milling and paving being performed by the defendant underneath the bridge would not have changed the clearance.

The Appellate Division affirmed the trial court’s order granting summary judgment. The Court found that the defendant GC had no duty to affix signage at this overpass or to address the traffic flow at this location. Thus, the GC was entitled to summary judgment regardless of whether it enjoyed traffic sign immunity under the Tort Claims Act.

The Court also rejected the plaintiff’s argument that this situation was an “emergency” and found inapplicable the case law in which “a public entity may be held liable for its failure to provide emergency signals when the dangerous condition is temporary.” The Appellate Division agreed with the trial court judge that “the Ridge Road overpass’s lack of clearance signage is not the type of sudden and unanticipated situation that would impose liability on a public entity, and as such, the judge correctly determined defendant was entitled to traffic sign immunity.”

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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COVID-19 and New Disability Obligations

In this space, I have written a couple articles on the need for employers to be aware of accommodation obligations under federal and state disability laws for those employees who are high risk for either COVID-19 exposure or more serious health problems from COVID-19.  I want to focus today on a different aspect of the accommodation duty — the need to accommodate the possible long term health problems flowing from recovery from COVID-19 themselves.

For many persons who survive their bout with COVID-19, long term heath consequences could continue for some time after COVID-19 no longer provides a risk of death or contagion to others. Some have continuing respiratory problems. Others continue to be lethargic for weeks after receiving a negative COVID-19 test. Still others experience long and short term cognitive issues. While COVID-19 may have left their bodies, new health problems exist, and these medical issues themselves will likely create possible accommodation requirements for employers because those issues would most likely qualify as a legal disability.

Employers need to be cognizant of such accommodation duties, and should approach them in the same fashion as they would any other accommodation request for a particular health ailment. Remember to follow the guidance provided previously in past articles about the importance of the interactive process in exploring possible accommodations and gaining needed medical information from the employee to help shape that dialogue and craft a potential accommodation, or alternatively, a defense to that request if no accommodation could work for the employer. Failing to do so will no doubt generate unwanted legal headaches for the employer. Thus, employers should not ignore this new health phenomenon.

So, remember, even when COVID-19 itself seems to have been beaten by the employee, its possible long term exposure effects on an employee may remain and could require some form of workplace accommodation.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Supreme Court Found Question of Fact as to Whether Police Officer Entitled to Qualified Immunity for Shooting of Plaintiff

The plaintiff Bryheim Jamar Baskin claimed that a justifiable police chase ended in an unjustifiable police shooting due to the use of excessive force in violation of the Federal Constitution.  The issue decided by the New Jersey Supreme Court in Baskin v. Martinez, 243 N.J. 112 (2020) was whether the defendant Detective Rafael Martinez, who chased and eventually shot Baskin, was entitled to qualified immunity and, hence, a dismissal of the lawsuit on a summary judgment basis.

Certain facts were undisputed.  The police chased 20 year old Baskin after he crashed his car into an unmarked car occupied by Detective Martinez.  Baskin fled on foot with a handgun, which he discarded out of Martinez’s sight.  Thereafter, Baskin found himself trapped in a walled yard with no way to escape.  It is at that point, that the facts become disputed.

According to Baskin and an eyewitness, Baskin put his hands up above his head and turned toward the pursuing police officer with his palms open and no weapon.  He claims that he made no gesture that he was reaching for a weapon and that he posed no threat.  Baskin and the eyewitness state that Baskin’s hands were in the air in a sign of surrender when Detective Martinez shot him in the abdomen, causing serious and permanent injuries.

On the other hand, Detective Martinez asserts that when Baskin finally came into sight, he turned and pointed in the detective’s direction with an object that looked like a gun.  Detective Martinez claimed that he feared for his life and, only at that time, did he discharge his weapon.  There was no handgun found where Baskin fell.  There were two cell phones located nearby.

Based upon these facts, the trial court granted Detective Martinez qualified immunity and dismissed Baskin’s §1983 action.  A split three judge Appellate Division panel reversed and reinstated the case.  Due to the dissent in the Appellate Division, the issue of whether Detective Martinez was entitled to qualified immunity came to the Supreme Court as an appeal as of right.

The Supreme Court did affirm the Appellate Division majority, but it was a split decision of a 4-3 vote.  Regardless, the Supreme Court affirmed the Appellate Division, finding in favor of the plaintiff on a summary judgment basis.

The Court noted that it must accept as true the testimony of Baskin and the independent eyewitness, who both stated that Baskin’s hands were above his head, in an act of surrender when Detective Martinez shot him.  Under that scenario, a police officer would not have had an objectively reasonable basis to use deadly force.  The use of deadly force is prohibited against a non-threatening and surrendering suspect.  Hence, the Supreme Court concluded that Detective Martinez was not entitled to qualified immunity on a summary judgment basis.

The Court discussed what was needed to establish qualified immunity, which is as follows:

1.Whether the evidence, viewed in the light most favorable to the plaintiff, establishes that the official violated the plaintiff’s constitutional or statutory rights; and

2.Whether the right allegedly violated was “clearly established” at the time of the officer’s actions.  A right would be clearly established “if it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.”

Further, the Court pointed out that under the qualified immunity case law, the Court is required not only to view the evidence in the light most favorable to the plaintiff but also to draw all reasonable inferences in his favor that are supported by the summary judgment record.  Based upon the facts, the Court cannot give credence to Detective Martinez’s account of the last moments of his encounter with Baskin and cannot resolve the disputed issues of material fact as would a jury.  The Court must accept as true the testimony of Baskin and the eyewitness that, as Detective Martinez “rounded the corner of the house, Baskin was standing with his open and empty hands above his head – not reaching for a weapon or making a threatening gesture.”

Under the law, it is clear that every police officer would understand that “it is not objectively reasonable to shoot a person suspected of committing a crime after he has placed his empty hands above his head in an act of surrender.”  The law is also clear that a suspect’s conduct leading up to his attempt to surrender cannot alone justify using deadly force against the suspect when his hands are above his head in an act of submission and he no longer poses a threat.  While the facts may be disputed as to whether Baskin’s hands were empty and up in the air, for qualified immunity purposes, the Court must consider the totality of the circumstances through the perspective of an objectively reasonable police officer on the scene.  The Court must also accept Baskin’s version of these events that are in dispute and draw all reasonable inferences in his favor.

The Court noted its understanding that police officers often must make split second decisions in highly volatile situations and does not minimize the challenges of dangers facing a police officer engaged in pursuit of a suspect who is observed carrying a gun.  The Court accepted that Detective Martinez had a legitimate and obvious basis to be concerned for his safety.  Had Baskin turned toward him with a gun in his hand, Detective Martinez would likely have had an objectively reasonable basis to use deadly force to protect himself.  The Court stated that “the justification for use of deadly force at one point and a dangerous encounter does not give an officer the right to shoot a suspect when the use of deadly force can no longer be justified.”

Detective Martinez testified that when he rounded the corner, he saw Baskin turning toward him pointing an object that appeared to be a gun.  However the facts were sharply disputed as to whether that occurred and whether Baskin pointed anything at him, even if it turned out just to be a cell phone.

Because of the conflicting accounts of what occurred at the time of the shooting and other disputes of material fact, the Supreme Court found that this issue must be submitted to a jury for resolution of the facts.  At that point, the trial court can determine the merits of the application for qualified immunity.  After the jury makes its fact findings, Detective Martinez will be able to renew his qualified immunity application if there is a basis to do so.  Hence, the Supreme Court affirmed the judgment of the Appellate Division and remanded the case back to the trial court.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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A Refresher on Handling Reasonable Accommodations

In this current age of COVID-19, employers are seeing more and more requests from employees seeking a workplace reasonable accommodation. Some of these requests emanate from the employee’s own health condition that increases risks for COVID-19 complications. On the other hand, some employees are seeking to avoid coming into work because close family members have health conditions that make them more susceptible to COVID-19. So, how should employers respond to such requests?

As most employers know, possible accommodation duties flow from both federal and state anti-disability discrimination laws. For example, the Americans with Disabilities Act (“ADA”) requires that accommodations be made to assist a disabled employee in performing the essential functions of an employee’s job position. Here, in New Jersey, the state’s Law Against Discrimination (“LAD”) also imposes a similar duty.

In facing the accommodation requests of the kind referenced above, the first thing that I counsel employer clients to do is confirm that the employee indeed has a disability that may need to be accommodated. In today’s COVID-19 world, we are seeing more and more employees seeking an accommodation of working virtual from home because of concerns about vulnerable family members with whom they live. Since the employee is not asking for an accommodation for his/her own medical condition, neither the ADA nor the LAD requires that the employer accommodate the request. This does not mean that the employer cannot work with the employee to address such concerns-what it does mean is that legally the employee has no right to demand such an accommodation.

If the employee is conversely seeking an accommodation for his or her own medical condition, the employer is obligated to explore the possibility of an accommodation by engaging in the interactive process of examining possible ways of addressing the request.  This interactive back and forth includes the right on the employer’s part to obtain medical information to substantiate the request for accommodation. For employees who have a greater vulnerability of COVID-19 health risks, several of my clients are also seeing a higher volume of requests to work from home. Many of these clients are concerned about providing such an accommodation because it gives rise to possible burdens on staffing and the ability to provide services to clients.  As part of any analysis of such a request, my recommendation is always to scrutinize closely the medical reason for the request, and obtain detailed information from the medical provider about whether other non-work restrictions have been imposed. For example, has the doctor told the employee that he/she should not be leaving the home for any reasons or placed any similar type of stay at home restrictions on the employee. I also urge employers to alert the employee’s doctor to the steps taken in the workplace to protect employees from COVID-19 exposure so the physician can assess risks in light of the actual workplace to be encountered by the patient employee. Using such an exacting approach will better allow the employer to ferret out legitimate accommodation needs from those which arise from general fears of possible workplace COVID-19 exposure that ordinarily are not a sufficient legal reason for an accommodation.

The interactive process is a critical aspect of handling all workplace accommodation requests and should not be ignored because of the possible abuse of accommodation requests by employees fearing COVID-19 exposure. Even in situations where ultimately the employer may believe that it will cause an undue hardship to accommodate the employee, the interactive process must still be pursued before ultimately denying the accommodation request due to an undue hardship. In my experience, this is where employers get themselves into the most trouble. In this COVID-19 world, it is tempting to just ignore this step in the process and deny a suspicious accommodation request outright, but doing so is fraught with peril.

So, by following the foregoing steps, employers will better handle accommodation requests in the age of COVID-19 and minimize potential risks of liability claims hurting your business.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Vaccines and the Workplace

Anyone watching the news today has seen report after report about a possible vaccine for the coronavirus and the speedy progress being made towards its development.  This vaccine is hoped by many to be the cure all to allow the world to go back to some semblance of the normalcy that existed before the commencement of the current pandemic. While all would seemingly acknowledge that an effective and reliable vaccine for COVID-19 would be wonderful news, the success of the vaccine in bringing back normalcy will largely depend upon how willing the general public will be in taking the vaccine. Which leads me to the question that I have already been asked by several of my clients: in an age of a pandemic, can employers force their employees to undergo a vaccine treatment as a condition of employment?

While the current pandemic is new, the above question is not. With the rise of the anti-vaccine movement, employers have actually had to grapple with this issue, especially those in the health care industry. In this regard, there are already several reported cases regarding whether hospitals and other health care providers can require employees to have flu and tuberculosis vaccines as a condition of continuing employment. Employees have been fired for not agreeing to be vaccinated, and a body of law has developed addressing this issue. Absent a compelling reason for refusing a vaccination, the case law holds predominantly that employers can indeed require vaccinations as a term and condition of employment, and employees without a valid religious or medical reason for rejecting a vaccination can indeed be fired. In the large majority of such cases, the courts have determined that the employer has a compelling interest in maintaining the safety of their workplace and the health of those whom they serve. Such legal principles would thus seemingly support the idea that, when a vaccine is discovered for COVID-19, an employer could mandate that employees receive such inoculations, subject to having to consider the possible exemptions previously noted. In an age of a pandemic, and a virus that has killed hundreds of thousands of victims worldwide, it is hard to fathom a more serious threat to public health and an employer’s workforce and its customers that could justify a required vaccine employer directive.

Moreover, in March 2020, the Equal Employment Opportunity Commission (“EEOC”) also issued COVID-19 guidance specifically addressing the issue of whether employers covered by the Americans With Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”) can compel all employees to take the influenza vaccine (while noting that there was not yet a COVID-19 vaccine). In responding to this question, the EEOC stated that an employee could be entitled to an exemption from a mandatory vaccination under the ADA based on a disability that prevents the employee from taking the vaccine, which would be a reasonable accommodation that the employer would be required to grant unless it would result in undue hardship to the employer.  Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation. The EEOC made similar mention of a possible religious obligation exception under Title VII also absent the required showing of an undue hardship.

Finally, the Occupational Health and Safety Administration (“OSHA”) similarly has declared that employers may require employees to be inoculated against the flu, provided the employer provides to its employees an explanation of the benefits of the inoculation, and further allows for an exception for those employees who reasonably believe that they are at significant risk of serious medical complications from having the vaccination.

So, as we wait for a vaccine to become available, employers should begin thinking about what they will be demanding of their employees regarding the need to receive a vaccination when it begins to be widely distributed. Should employers require vaccinations of all employees, or only those employees who are most high risk for serious complications from COVID? If an employer opts for the latter, could that approach open the door to discrimination claims from those who are older or have disabilities who are at higher risk? And, how do you handle the expected requests for religious and medical accommodations, and can you avoid such duties by arguing that accommodation would impose an undue hardship by increasing the risk of possible COVID spread in your workforce?

Employers:  Begin your analysis of these issues now because if the reports in the news are indeed true of expedited success in creating a vaccine, you will need to address those issues much sooner than you presently think.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Is the Government Travel Advisory an Enforceable Order?

As most of us know, the Governors of New Jersey, New York, and Connecticut have issued a “travel advisory” indicating that those who travel from certain states must quarantine for a period of 14-days after the last contact with those states. Is this “advisory” an enforceable order? Well, this topic is becoming one of the most complex of issues facing employers today during this pandemic.

The advisory is now effective and applies to all states that have a positive test rate higher than 10 per 100,000 residents or a state with a 10% or higher positivity rate over a seven-day rolling average. But, unlike the governors of New York and Connecticut, who issued executive orders announcing the restrictions, Governor Murphy of New Jersey has not. New Jersey issued a travel advisory instead. Hence, the question that forms the title of this article – is this travel advisory a state order that must be complied with in all due respects or is it a request from the state for persons to voluntarily engage in certain conduct?

The states that are currently on New Jersey’s travel advisory as of July 28, 2020 include the following:

  1. Alabama (added 6/24/20)
  2. Alaska (added 7/21/20)
  3. Arkansas (added 6/24/20)
  4. Arizona (added 6/24/20)
  5. California (added 6/30/20)
  6. Delaware (re-added 7/21/20)
  7. District of Columbia (added 7/28/20)
  8. Florida (added 6/24/20)
  9. Georgia (added 6/30/20)
  10. Iowa (added 6/30/20)
  11. Idaho (added 6/30/20)
  12. Illinois (added 7/28/20)
  13. Indiana (added 7/21/20)
  14. Kansas (added 7/7/20)
  15. Kentucky (added 7/28/20)
  16. Louisiana (added 6/30/20)
  17. Maryland (added 7/21/20)
  18. Minnesota (re-added 7/28/20)
  19. Mississippi (added 6/30/20)
  20. Missouri (added 7/21/20)
  21. Montana (added 7/21/20)
  22. Nebraska (added 7/21/20)
  23. Nevada (added 6/30/20)
  24. New Mexico (added 7/14/20)
  25. North Carolina (added 6/24/20)
  26. North Dakota (added 7/21/20)
  27. Ohio (added 7/14/20)
  28. Oklahoma (added 7/7/20)
  29. Puerto Rico (added 7/28/20)
  30. South Carolina (added 6/24/20)
  31. Tennessee (added 6/30/20)
  32. Texas (added 6/24/20)
  33. Utah (added 6/24/20)
  34. Virginia (added 7/21/20)
  35. Washington (added 7/21/20)
  36. Wisconsin (added 7/14/20)

The advisory has become a nightmare for many employers to deal with. I am being barraged with questions about whether employers with employees travelling to the listed states must honor the two week self-quarantine directive. In addition, must the employer pay the employer for such quarantine time?  Many employers are irked about that latter fact: that they might actually need to pay employees who are willfully traveling to hot spots where the COVID virus is spreading like a wildfire. So, what can an employer do in this situation?

The first thing that must be determined is whether the advisory has the force of a legal order that must be followed.  On first glance, the answer to this question would seemingly be no. An advisory is just that: a seeming recommendation to self-quarantine for two weeks after travelling to a designated hot spot for the virus. Moreover, unlike New York and Connecticut, New Jersey has not included any prescribed penalties for the failure to follow the advisory. All this seems to suggest that the advisory does not have the force of law, and employers could compel their employees to come to work and not follow the advisory, which by the way, has a long list of exclusions for certain essential employees and folks who are travelling to New Jersey to work, which also seems to support a conclusion that compliance with the advisory is strictly voluntary.

New Jersey has a COVID-19 website that most thoroughly outlines what the state expects concerning its travel advisory. In what can only be described as classic Orwellian doublespeak, here is what that website says about this compliance issue: “The self-quarantine is voluntary, but compliance is expected.

As a lawyer reading such language, it makes me think that, while couching compliance as voluntary, the advisory really is a legal directive from the state making compliance mandatory – and when push ever comes to shove, I suspect a judge would feel that same way too if any adverse action is taken against an employee who insists upon following the self-quarantine directive.  So what have I been telling employers in this instance: if you can, try and claim that you have an essential employee. A list of those persons can also be found on the NJ COVID website. Otherwise, you likely need to let the employee self-quarantine for the required two weeks.

After concluding that the travel advisory seems to be anything but voluntary, the next question to be addressed relates to whether an employer must pay employees who self-quarantine in light of the advisory. If it is indeed a quarantine order, an employee would be allowed to use either New Jersey Paid Sick Time or might be eligible for paid emergency sick time under the Families First Coronavirus Response Act (“FFCRA”). That seems to flow from my analysis so far.

But, I recently had a conversation with a federal Department of Labor Investigator. That department is responsible for investigating claimed violations of the FFCRA.  Significantly, I was told by this investigator that right now her colleagues in New Jersey believe that the travel advisory is a voluntary requirement: “it says advisory right” or so I was told by the investigator. Thus, it was her view that paid federal paid sick time was not available because a state quarantine “order” was missing, and without such an order, there is no paid sick time eligibility. Confusing, right?  I was further told that the investigators here in New Jersey are awaiting for actual guidance from Washington on this topic. Let’s hope that comes soon.

As can be seen from above, there are a lot of moving parts here when an employer is trying to decide how New Jersey’s travel advisory affects its workforce. One option for the employer is to avoid having to deal with the issue entirely by prohibiting employees from travelling to any of the listed states. Employers have the ability to take such an action. They can ban business trips to those states, and likewise place a moratorium on approving any employee vacations for the next few months while seeing how the pandemic develops further. That way you as an employer know that your employees are not visiting places where a quarantine is required.

Hence, it is confusing to try to figure out what an employer must do in light of New Jersey’s “voluntary” travel advisory that from all indications is really a state “order” requiring full compliance in all respects.  Consequently, employers should proceed cautiously, and guide their actions accordingly, in how they treat employees coming back from restricted states under the advisory.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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EEOC Clarifies Allowable COVID 19 Testing For Employees

Over the last several months, the Equal Employment Opportunity Commission (“EEOC”) has continued to refine its past issued Guidances on what employers can do to safeguard employees from COVID-19 workplace exposure. One such measure that employers can utilize is mandating that all employees be tested for COVID-19.  But previously the EEOC never said what type of testing can be done. The EEOC has recently clarified precisely what kind of testing employers can now require of its employees.

As many know, there are now currently two types of available tests that can be utilized to detect COVID-19 exposure. The first is a diagnostic test that determines whether someone has the coronavirus at the time of the testing. The second kind is an antibody test that determines whether the individual from past exposure to coronavirus has developed any protective antibodies to the virus. When the EEOC announced its earlier Guidance that employee COVID-19 testing was permissible, employers thought that they had the option to require either type (or both) kinds of testing. That has changed with the EEOC’s latest Guidance.

Now, the only kind of testing allowable is diagnostic to determine whether the individual at the time of the testing has contracted COVID-19.  Antibody testing is not allowed-why?  The EEOC’s rationale for prohibiting such testing flows from recommendations from the Centers for Disease Control (“CDC”) which now states that antibody testing should not be used to return persons to the workplace. Deferring to the CDC’s conclusion about the use of antibody tests for returning employees, the EEOC Guidance now has determined that it is not an appropriate medical test that meets the job relatedness requirement for allowable examinations under the Americans with Disabilities Act.

As the EEOC’s recent modification to its Guidance shows, we are dealing with an ever evolving situation that could change literally overnight. Thus, employers must continue to stay on top of all developments on what can and cannot be done as many states continue their phased economic re-openings.

 


Ralph R. Smith, 3rd is Co-Chair of the Employment and Labor Practice Group. He practices in employment litigation and preventative employment practices, including counseling employers on the creation of employment policies, non-compete and trade secret agreements, and training employers to avoid employment-related litigation. He represents both companies and individuals in related complex commercial litigation before federal states courts and administrative agencies in labor and employment cases including race, gender, age, national origin, disability and workplace harassment and discrimination matters, wage-and-hour disputes, restrictive covenants, grievances, arbitration, drug testing, and employment related contract issues.

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Neither County, Nor Board Of Education Held Liable For A Student Injured In Gym Class

Plaintiff Cora Kerton, on behalf of J.R., her minor daughter, filed suit against the County of Hudson and the Board of Education for the Hudson County Schools of Technology, as well as the superintendent and principal of the school, due to an injury that her daughter suffered in gym class.  Her daughter suffered an injury to her foot while participating as a student in her gym class at County Prep, a high school in the school district.  In Kerton v. Hudson County, 2020 N.J. Super. Unpub. LEXIS 962 (App. Div. May 20, 2020), the issue was whether the plaintiff needed an expert to establish the standard of care owed by the defendants in supervising the gym class.

On the day of the accident, the plaintiff was a sophomore at County Prep.  The principal was responsible for creating the school’s master calendar which included the class periods.  The school had one gymnasium.  In 2014, two gym classes and one fitness class typically used the gymnasium during a single class period.  Each gym teacher ordinarily provided instruction to that teacher’s class.  However, at certain times, all three classes were brought together for joint instruction.  Joint instruction occurred at least once per week.

On the day of the accident, the three classes were brought together for other exercises.  One teacher instructed the students to begin interval running, which required transitioning from walking to running and back to walking.  The minor J.R. stated that she had transitioned from walking to running when she approached students who were still walking.  She attempted to go around them when she fell.  She claims certain students were using cell phones at the time.  At the time that she fell, the teacher was in the gym teacher’s office.

Due to the fall, she suffered a displaced fracture of the fifth metatarsal base and avulsion fracture to the tip of the fibular malleolus in her right ankle.  She needed surgery to repair the fracture of her foot and stabilize the ankle.  She underwent a second surgery to have one the screws removed that had been used to repair the fracture.

At the trial court level, the defendants all filed a motion for summary judgment.  They argued that the plaintiff failed to establish that at the time she fell, the County Prep gymnasium constituted a dangerous condition of public property under the Tort Claims Act.  They also argued that she failed to show that the defendants breached any duty of care.  Additionally, the County filed a motion, making among other arguments that the plaintiff’s negligence claim failed because she could not establish a standard of care for the teachers at the County Prep without expert testimony.

The trial judge noted that plaintiff was not asserting a claim that the gymnasium itself constituted a dangerous condition of public property.  Rather, plaintiff’s claim was based on the alleged negligence of defendants.  The judge determined that the negligence claim failed as a matter of law because plaintiff did not establish the standard of care owed by “a teacher who was supervising a large class in the middle of the day.”  The judge found that to prove such a standard would require the expertise of someone who had experience in teaching and education and supervising children in class.  He found that the common knowledge doctrine did not relieve the plaintiff of the obligation to present expert testimony.

The plaintiff appealed the ruling, claiming that the judge erred by finding that she needed expert testimony to establish the standard of care for her negligence claims and by refusing to apply the common knowledge doctrine.

The Appellate Division noted that “it is well established that teachers and school administrators in New Jersey have a duty to supervise children in their facilities.”  The Appellate Division also noted that expert testimony is required “when the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the defendant was reasonable.”  Further, the Court stated that “without expert testimony, the jury would have to speculate as to the applicable standard of care.”

The Appellate Division agreed with the trial court judge that the plaintiff was required to present expert testimony to establish the standard of care.  The Court noted that the motion judge correctly decided that “the average juror does not have the required understanding of the manner in which school administrators schedule classes, whether students in gym class should be permitted to use electronic devices while exercising and the level of student supervision required when three gym classes have class in a gymnasium at the same time.”  The Appellate Division agreed that these subject matters are “so esoteric that jurors of common judgment and experience cannot form a valid judgment.”

The Court also agreed with the trial court judge that the common knowledge doctrine did not apply.  The plaintiff had argued that this doctrine applies “when the common knowledge of jurors is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.”  The Appellate Division, however, agreed that an expert was needed in this case to establish the standard of care for the specific claims asserted in this case.

Accordingly, the Appellate Division affirmed the trial court’s decision.  Because the plaintiff did not have an expert to establish the standard of care, the defendants were entitled to summary judgment, dismissing the lawsuit.

 


Betsy G. Ramos, Esq. is a member of the firm’s Executive Committee and Co-Chair of the Litigation Group. She is an experienced litigator with over 25 years’ experience handling diverse matters. Her practice areas include tort defense, insurance coverage, Tort Claims Act and civil rights defense, business litigation, employment litigation, construction litigation, estate litigation and general litigation.

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