Despite the constant influx of novel legal issues caused by the COVID-19 crisis, the New Jersey Appellate Division is still busy at work rendering decisions on all aspects of the law, including those related to labor and employment. Case in point: M.R. v. Board. of Trustees (PERS), No. A-6015-17T4, 2020 N.J. Super. Unpub. LEXIS 615, an unpublished decision where the Court was again asked to determine whether a settlement agreement in a disciplinary action providing for resignation precluded the subject employee from subsequent eligibility for disability retirement benefits. The Appellate Division previously addressed this issue by way of a published opinion in Cardinale v. Bd. of Trustees, 458 N.J. Super. 260 (App. Div. 2019). You can find our summary of that particular opinion here.

This new case, M.R. v. Board. of Trustees, involved a Judiciary employee who agreed to resign in connection with pending disciplinary charges alleging inappropriate conduct and violation of Judiciary policy. Prior to entering into that agreement, however, the employee filed an application for disability retirement with the Public Employment Retirement System (“PERS”) for a health condition that purportedly arose prior to the disciplinary action. The settlement agreement in the disciplinary action provided that the parties took no position on the impact of the settlement upon the employee’s pending disability retirement matter. In the subsequent disability retirement proceeding, the threshold issue was whether the settlement and resignation disallowed the processing of his disability claim. PERS ultimately entered a final decision holding that the settlement agreement and resignation precluded the employee from obtaining disability retirement benefits, leading to the appeal with the Appellate Division. Ultimately, the Appellate Division affirmed the decision of PERS and based its determination on the earlier Cardinale case.

In Cardinale, the court considered an application for disability benefits under the Police & Firemen’s Retirement System (“PFRS”). 458 N.J. Super at 262. The plaintiff in that matter, a former police officer, had voluntarily and irrevocably retired from his position under a settlement agreement after he was suspended for a positive drug test. Id. at 264-65. The Court held “that when a PFRS member—here a police officer—voluntarily irrevocably resigns from active service, such a separation from employment automatically renders the individual ineligible for ordinary disability benefits.” Id. at 263 (emphasis added). The Court found the plaintiff’s claimed disability “irrelevant to its holding that his irrevocable resignation made him ineligible for benefits in the first place.” Id. at 268.

The Court in Cardinale found that N.J.S.A. 43:16A-8(2) dictates that the process whereby a recipient recovers from his or her disability and returns to work is the only way the Board can cut off disability benefits. Id. at 271. If, on the other hand, a worker “irrevocably resigned” from his or her former position, that creates, “a practical problem that strains the workability of the system . . . . the Board cannot statutorily cease paying any approved disability benefits, once they have begun, for an individual who voluntarily resigns from duty to settle disciplinary charges and agrees never to return. [Id. at 270-73.] Consequently, the Court ruled that allowing an employee to seek disability benefits in a situation where he or she had irrevocably retired would prevent the State from ever cutting off disability benefits, even upon recovery, because the employee could never “return” to his or her former employment and that “such an outcome “would violate public policy, contravene the rehabilitation statute, and encourage abuse of the disability retirement system.” Id. at 273.

In the more recent matter, M.R. v. Board. of Trustees, the Court acknowledged that Cardinale involved a different pension scheme, namely, PFRS, rather than PERS. It determined, however, that a comparison of the statutes demonstrated that Cardinale’s logic applied with equal force to PERS given that the various pension schemes were designed to be “part of a harmonious whole.”

The employee in M.R. v. Board. of Trustees presented a novel argument and contended that he was eligible for the disability pension because the disciplinary settlement only barred him from reemployment with the Judiciary. He claimed he can return to employment in a different (non-judicial) branch of State government, and that there is nothing in the settlement agreement “to say that he couldn’t return to his former duties with a different employer.” He argued this possible return to service as a PERS member is consistent with N.J.S.A. 43:15A-44.

The Appellate Division was not persuaded, holding that the employee did not suggest what jobs, if any, outside the Judiciary would be akin to his former “duty” or would require similar responsibilities to his position. The Court held that he cited no cases to support the argument that N.J.S.A. 43:15A-44 envisions allowing an employee to return to “his former duty, just not his former employer” and concluded that the case law supports the contrary proposition, that an employee who retires due to disability and subsequently recovers must be rehired by his former employer in the same or similar position. Because the disciplinary settlement agreement barred that possibility, the Court affirmed the decision of PERS, thereby reaffirming its earlier ruling in Cardinale.

As you are all aware, we recently posted an article about the ability of New Jersey, its counties, and municipalities to house first responders and others who may have been exposed to COVID-19 in hotels and motels at federal expense. Since that time, numerous NJ Public Safety Officers, as well as the Unions that represent them, have contacted us to inquire as to how to avail themselves to this “non-congregate housing” option as the term is also used. Incredibly, we were told that the State as well as many counties and municipalities had not advised its officers of the possible use of hotels and/or motels to prevent the spread of COVID-19 nor were the governmental entities aware of how to logistically secure this housing option for its officers. More concerning, various officers also advised us that they were unable to secure housing at hotels and/or motels under such a “non-congregate” program. As a result, our office felt it prudent to research the issue further so as to provide additional guidance for you as well as the governmental entities you are employed by to ascertain how to secure such housing.

On April 11, 2020, Governor Murphy and the Superintendent of the State Police, Patrick Callahan, announced that the Federal Emergency Management Agency (“FEMA”) approved New Jersey’s request to use emergency, non-congregate sheltering for individuals impacted by COVID-19 that do not have the means or ability to isolate themselves. It is our understanding that FEMA’s approval allows State, county, and local governmental entities to be reimbursed for providing housing at hotels and/or motels for first responders and healthcare workers who do not require hospitalization, but nevertheless need to avoid direct contact with their families due to exposure to COVID-19.

In simple terms, this is what should take place to put such a plan in motion. Your respective employers should contact a hotel and/or motel within your area and request that housing be provided for you based upon your status as first responders.  In turn, in order for the employer to receive reimbursement for the expense, they must pay for the housing and then seek reimbursement for the same directly from FEMA.  As such, the first step should be for you or your Union to request your respective employers, whether it be on the State, County, or Municipal level, to contact hotels and/or motels within the area and “reach a deal” to provide such housing.  As you may expect, this may be more problematic for State law enforcement officers as the State would need to contact hotels and/or motels in each and every County to meet the needs of officers statewide. Nevertheless, these measures should be explored and utilized immediately by all of your employers in order to safeguard not only your safety, but the safety of your families and loved ones as well.

Please feel free to contact our office is we can assist you with the process of securing such housing in any way.  Moreover, please continue to check this blog periodically to ascertain important updates regarding New Jersey Public Safety Officers and the recent impact of COVID-19. Stay safe and healthy.

As reported by, Cooper University Health Care will open two COVID-19 testing sites solely for Camden law enforcement, first responders at all levels of government and medical personnel on Tuesday.

“Our friends in the law enforcement and first responder communities play a vital role in protecting society. For many of these dedicated individuals, the nature of their work places them at a higher risk of exposure to COVID-19,” said co-president and CEO of Cooper Kevin O’Dowd. “To keep these men and women as safe as possible we are proud to launch dedicated testing sites, so we may administer the greatest number of tests in the most efficient manner.”

Both sites will serve law enforcement at all levels and be by appointment only.

The first site, which will be drive-thru only, can be accessed through the Benson Street/Haddon Avenue entrance to the Camden County Improvement Authority (CCIA) parking garage on the Cooper Health Sciences Campus in Camden. It will be open from 10 a.m. to 2:30 p.m.

The second site, which will also serve EMS personnel, will be available at the Cooper Emergency/Trauma entrance on Benson Street weekdays from 4 p.m. to 10 p.m.

“Cooper has a history of providing education and serving as resources to public service personnel,” said Anthony Mazzarelli, co-president and CEO of Cooper. “This is another way we can serve those on the front lines.”

Hospital officials said both testing sites are open for anyone who has symptoms, meet other criteria (including exposure), and have received a referral for testing from a medical provider.

To make an appointment first responders and law enforcement need to call 856-968-7100 or 856-342-2881 (Monday through Friday 8 a.m.-5p.m.). Additional sites serving or otherwise prioritizing the testing of law enforcement and first responders have been established at the Trenton Police Department, the PNC Bank Arts Center in Holmdel, Camden County College, and Kean University in Union.

As reported in Insider NJ Senator Steven Sweeney introduced legislation expanding access to workers’ compensation benefits for front-line workers that have fallen ill as a result of exposure to COVID-19.

The bill, like similar legislation that has been introduced in Minnesota, would create a presumption that COVID-19 disease infections contracted by essential employees who interact with the public, including health care workers and public safety workers, are work-related for the purpose of determining employment benefits for work-related injuries and illnesses, including the receipt of workers’ compensation benefits.

The presumption would apply to essential employees in both the public and private sectors who perform needed work during the current public health emergency and would be retroactive to March 9th, when New Jersey’s state of emergency was declared.

The bill also would establish that an essential employee’s absence from work due to an employee contracting or being exposed to COVID-19 disease will be considered “on duty” time, and prohibits employers from charging that employee for paid leave.  Instead, the time that the employee is out from work will be converted to compensable time off from work under the New Jersey Workers Compensation Act.

While the bill has just been introduced, all First Responders should pay particular attention to this legislation as it has the propensity to increase workers compensation benefits exponentially for employees and their families that have fallen ill to COVID-19 or that have perished from contracting virus.

As reported by, New Jersey and its municipalities just got permission to house first responders and others who may have been exposed to the coronavirus in hotels and motels at federal expense. The State became eligible to request Federal Emergency Management Agency funding after President Donald Trump issued an emergency declaration March 26.

The idea behind the program is to provide individual housing for first responders or people who otherwise would be living in group quarters, thus stopping the spread of the coronavirus. Moreover, by using hotel rooms, the State can free up already-scarce hospital beds for more serious cases, and allow those exposed to the coronavirus to avoid infecting family members or others they live with.

“This increased access to housing for vulnerable populations, health care workers, and first responders will allow New Jerseyans to isolate themselves without fear of spreading COVID-19 to family members and their surrounding communities,” said Gov. Phil Murphy, who sought federal approval for the housing arrangements.

The use of hotels for first responders is yet another mechanism for New Jersey Public Safety Officers to potentially utilize in preventing the spread of the coronavirus and ensure the safety of their family and loved ones.  While issues such as the availability and use of personal protection equipment are vital, the use of hotels could well serve many officers battling on the front lines. Please continue to check this blog periodically for important updated regarding the impact of the coronoavirus on all New Jersey Public Safety Officers. Stay safe and healthy.

As announced at the White House Press Briefing on the evening of April 8, 2020, yesterday, the Center for Disease Control has modified their guidelines for First Responders that may have been exposed to individuals infected with COVID-19.  The new guidelines that were most recently posted on the CDC’s Website are meant to assist agencies in “ensuring continuity of operations of essential functions.” Based on this premonition, the CDC now advises that critical infrastructure workers (which includes First Responders) may be permitted to continue work following potential exposure to COVID-19, provided they remain asymptomatic and additional precautions are implemented to protect them and the community.

In accordance with the guidelines, a potential exposure means “being a household contact” or “having close contact within 6 feet of an individual with confirmed or suspected COVID-19”.  The time frame for having contact or exposure with an individual is defined as 48 hours before the individual became symptomatic.

Based on this new guidance, if a First Responder has been exposed in accordance with the two criteria listed above, but remains asymptomatic, the employer may make the decision of sending the employee back to work so long as the following procedures and precautionary measures are taken both prior and during their work shift:

  • The First Responder must be Pre-Screened prior to the Start of the Shift: Employers must measure the employee’s temperature and assess symptoms prior to the start of the work shift. Temperature checks should happen before the individual enters the facility.
  • The First Responder must be Regularly Monitored During the Shift: As long as the employee doesn’t have a temperature or symptoms, they should self-monitor under the supervision of their employer’s occupational health program.
  • The First Responder Must Wear a Mask during the Work Shift: The employee should wear a face mask at all times while in the workplace for 14 days after last exposure.
  • The First Responder must Practice Social Distancing: The employee should maintain 6 feet and practice social distancing as work duties permit in the workplace.
  • The Employer must Disinfect and Clean Work Spaces: Clean and disinfect all areas such as offices, bathrooms, common areas, shared electronic equipment routinely.

It is incredibly important to recognize that these guidelines are a departure from the CDC’s previous guidelines which mandated that all employees exposed to an individual that is confirmed positive for COVID-19 self quarantine for period of fourteen (14) days.  Political Pundits have stated that these new guidelines were put in place as a response to the growing shortage of critical infrastructure employees due to the fourteen (14) day “exposure” quarantine period as well as this is the Trump Administration’s first action of bringing “exposed” employees back into the workforce sooner rather than later.

However in light of these new guidelines, First Responders, must remember the following:

  • Implementing the change in the policy is not mandatory.  In other words, your employer can continue following the previous guidelines of  self quarantining all employees that had direct exposure with an individual that has been confirmed positive for COVID-19.  With that being said, if the employer does choose to implement the new guidelines it will be much harder for us to enforce the old guidelines for local employees (County and Municipal).
  • If your employer chooses to follow the new guidelines, the demand for employer provided PPE is now more important than ever as the chance of infection will become greater.  Based on this fact, employers must do whatever is necessary to source the proper PPE.
  • First Responders that have been exposed must be tested immediately.  The New Jersey State P.B.A. has located and identified Testing Facilities that are dedicated to First Responders.  These facilities are open to all Law Enforcement Officers, not just PBA members.  Therefore, if you are a First Responder and you have been exposed to a person that has tested positive for COVID-19, get a test as soon as possible.  This is especially true if your Department adopts and implements the new CDC guidelines referenced in this Article.

As Always, thank you for your service and please stay safe and healthy out there.

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA), which provides paid leave under the Family Medical Leave Act (FMLA) and paid sick leave for absences resulting from COVID-19. Here are some important points regarding the impact of the law as well as its application:  

  1. The law took effect on April 2, 2020, and ends on December 31, 2020. It applies to all employers with 500 employees or less. Employees with 30 days of employment are eligible for benefits.
  2. Emergency FMLA – Job-protected family leave is provided to employees to take care of a child under 18 years of age who is home because their school or daycare has been closed because of COVID-19. The first 10 days of this FMLA leave is unpaid. Thereafter, employees must be paid up to two-thirds of their salary and benefits will vary between full-time and part-time employees. This number is capped at $200 per day and $10,000 in total for each employee. Employers with 50 employees or less can apply for an exemption to the law if they can show that paying this benefit would “jeopardize the viability of the business.” Employers with 25 employees or less are exempt if an employee’s position is eliminated due to economic conditions.
  3. Paid Sick Leave – The law provides 80 hours of paid sick leave to full-time employees. Paid sick leave is also available for part-time employees on a pro-rata basis. The leave can be used because an employee has been ordered by the government or a health care provided to quarantine if they are seeking medical assistance because of COVID-19 symptoms, if they are taking care of an individual who has been quarantined or ordered to self-quarantine, or if they are taking care of a child whose school or daycare has closed because of COVID-19. Paid sick leave is to be paid at the employee’s salary with the following caps: $200 per day and $2,000 total per employee to care for a child or family member; $511 per day and a total of $5,110 total per employee to care for themselves. Employers with 50 employees or less can apply for an exemption if paying sick leave would “jeopardize the viability of the business.”
  4. Tax Credits – Employers are eligible for reimbursement of 100% of the amount paid under this emergency legislation through tax credits.
  5. ExemptionsThe FFCRA actually provides for an exemption for “Emergency Responders” who may be excluded from paid sick leave or expanded family and medical leave by their employer under the law. Under the FFCRA, an emergency responder is an employee who is necessary for the provision of transport, care, health care, comfort, and nutrition of such patients, or whose services are otherwise needed to limit the spread of COVID-19. This includes but is not limited to military or national guard, law enforcement officers, correctional institution personnel, fire fighters, emergency medical services personnel, physicians, nurses, public health personnel, emergency medical technicians, paramedics, emergency management personnel, 911 operators, public works personnel, and persons with skills or training in operating specialized equipment or other skills needed to provide aid in a declared emergency as well as individuals who work for such facilities employing these individuals and whose work is necessary to maintain the operation of the facility.

Because the law exempts “emergency responders,” most law enforcement personnel should not anticipate that the benefits provided under the FFCRA will be offered by your respective employer. However, the law may hopefully offer greater benefits to some of your spouses and family members working outside of the field of law enforcement in terms of dealing with the current crisis.

As reported by, U.S. Treasury Secretary Steven Mnuchin said a fourth stimulus package could include hazard pay for those on the front lines of the COVID-19 crisis. Mnuchin told CNN Monday that his department has not yet begun work on a fourth stimulus package, as it works to implement the third package passed by the Senate last week, but that hazard pay for first responders and healthcare workers is “definitely something we will put in the next bill.”

Mnuchin said he agreed with President Donald Trump when he said on “Fox and Friends” Monday morning that his administration was looking into including hazard pay for healthcare workers, some of whom don’t qualify for the checks included in the previous package, according to CNN.

The $2 trillion legislation signed by Trump on Friday includes several provisions with implications for fire and EMS departments, including $45 billion for the Disaster Relief Fund, $16 billion to replenish the Strategic National Stockpile of PPE and medications and $100 million for the Assistance to Firefighters Grant (AFG) program.

The National Association of Emergency Medical Technicians (NAEMT) said in an open letter last week that the package does not provide enough support for EMS agencies and providers, demanding direct funding to departments and immediate protections for personnel, including priority access to testing and reimbursements for childcare.

As you might expect, this could be major news for all New Jersey Public Safety Officers as first responders.  In fact, our office was in the process of attempting to secure such hazard pay for many of our clients prior to this news breaking. Being on the front lines of the COVID-19 crisis has put not only the health of  Officers and other first responders in jeopardy, but their families and loved ones as well.  If such a measure is passed, however, this would provide those officers with the compensation to which they should be entitled given the circumstances. As such, please continue to check this blog periodically to ascertain updates as they become available regarding this important topic.

On Thursday, March 26, 2020, on behalf of ten thousand (10,000) New Jersey State Correctional Police Officers, I sent correspondence to the Commissioner for the New Jersey Department of Corrections and the Acting Director for the New Jersey State Juvenile Justice Commission requesting that they petition the Governor for the State of New Jersey to establish, stand up and fund a COVID-19 testing facility that is dedicated to New Jersey State Sworn Correctional Personnel.  Despite the fact that the letter explained in explicit detail the need for the facility, I was questioned by a media outlet yesterday if such a facility was truly necessary in light of the lack of tests available to the general public.  I provided an explanation to the outlet in more “layman’s” terms and felt compelled to do so again in this article.

Unfortunately, COVID-19 has reached inside New Jersey State Correctional Facilities.  Putting aside County Jails, in state facilities alone there have been eleven (11) employees that have returned positive test results for the virus.  Of the eleven, over half of the positive results were sworn law enforcement officers.  To the Department’s credit, they have been strictly adhering to the CDC guidelines in an effort to stop the spread of the virus and eradicate it from the institutions.  Based on this fact, any officer that was directly exposed to the positively impacted officer has been ordered into self-quarantine for a period of fourteen (14) days in an effort to stop the virus from spreading.  The fourteen (14) day period of self-quarantine requires an officer to absent himself or herself from their workplace for a minimum of fourteen (14) days whether they are inflicted with the virus or not.  Thereafter, if they are diagnosed as having contracted coronavirus, their absence will be longer than fourteen (14) days.  However, if they are asymptomatic, they will still be required to be absent from work for fourteen (14) days under the current CDC guidelines.

In New Jersey and across America, for various reasons too numerous to be listed here, only individuals that are experiencing symptoms associated with COVID-19 are permitted to be tested.  Therefore a Correctional Police Officer that has been exposed to an affected individual may not be tested unless he or she demonstrates CDC recognized symptomology.  New Jersey State correctional facilities require numerous Correctional Police Officers to work in very close quarters alongside one another during a work shift in an effort to manage the inmates in their care, custody and control.  As a result of these working conditions, for each officer that has tested positive for the virus, on average, twenty (20) other officers have had to be removed from the workplace and ordered to self-quarantine for a period of fourteen (14) days.  To put such a scenario in baseball or football terms, one positive result takes approximately twenty (20) players out of the game and unfortunately, “the bench” isn’t deep enough to accommodate losses such as this.  Therefore, multiple positive results within an institution at a single or overlapping time will be extremely problematic.  Such a situation will cause officers to be overworked which thereby has the potential to cause dangerous security problems.  This is a circumstances that no member of society wants to see happen.

So, the question that needs to be asked is: How will the dedicated testing facility help to alleviate this potentially debilitating problem?  The answer is simple—If we can test an asymptomatic officer soon after exposure and a negative result is returned, the officer can be returned to work thereby alleviating the potentially critical manpower shortage.  If the manpower issue is solved, the potential security problem is thereby alleviated.  Please understand that Correctional Police Officers are not looking for special treatment during this worldwide pandemic.  All that they want to do is to “get back into the game” sooner rather than later to ensure the safety and security of our State’s Citizens.

On Wednesday, March 25, 2020, Governor Phil Murphy signed Executive Order No. 110 (EO-110), directing all child care centers in New Jersey to certify by Friday, March 27, that they will solely serve as emergency child care centers for the children of essential workers. Child care centers that do not certify that they can and will exclusively care for these children of essential workers must close by Wednesday, April 1.

“Essential personnel are a vital part of our response and limiting child care to solely these individuals will assist in flattening the curve of COVID-19 cases, as well as provide our front-line workers with the critical services they need to get through this emergency,” said Governor Murphy. “A lack of child care cannot be a barrier for our essential employees, and while these workers commit themselves to our New Jersey family, we will commit ourselves to protecting their families.”

“Safe, dependable childcare has always been a necessity for working families,” said New Jersey Department of Children and Families Commissioner Christine Norbut Beyer. “It is even more crucial now for parents working in professions deemed essential during this public health crisis.  The state’s response to, and recovery from, the Novel Coronavirus really hinges on the skills and ability of our dedicated first responders and essential personnel. We need to do all we can to help them do their jobs without the worry and distraction of losing safe childcare options.”

“In this ongoing emergency, child care providers and staff who care for the children of essential workers are vitally important to our children and to the State’s response,” Human Services Commissioner Carole Johnson said. “We thank the entire child care workforce for their dedication and commitment every day, and especially during this difficult time.”

Among the directives, the Governor’s executive order directs:

  • The Commissioner of the Department of Children and Families, in consultation with the Commissioners of the Departments of Education, Human Services, and Health, shall implement a plan permitting access to emergency child care services for the children of “essential persons.”
  • In order to be designated as an Emergency Child Care Center, any person or organization, requesting permission to stay open or resume operations on or after April 1, 2020, shall submit the certification form to the Commissioner of Children and Families for approval by Friday, March 27, 2020.  If the certification form demonstrates that it will provide child care services exclusively to “essential persons” during the school closure period, and that it will follow all applicable emergency child care standards, the Commissioner shall authorize it to remain open or resume operations as an emergency child care center.
  • Any child care centers, including those as defined in this executive order, that fail to timely certify shall be closed to the public as of Wednesday, April 1, 2020, and remain closed through the school closure period. Centers shall receive notice of the Commissioner of Children and Families’ certification decision by Monday, March 30, 2020.
  • Child care centers, for purposes of this order, include entities providing care on a regular basis for children aged 0-13, including licensed child care centers.
  • For purposes of this order, essential persons shall include, but not be limited to: 1) Health care workers, including staff working in health care facilities and in community-based services including home health and behavioral health; 2) law enforcement personnel, fire and emergency services personnel, and staff at correctional facilities; 3) individuals employed at emergency child care centers operating on or after April 1, 2020; 4) staff working for entities that provide essential social services, including, but not limited to, group home and shelter staff; 5) essential government employees who are unable to work from home, including child protection services workers, child welfare workers, foster care workers, unemployment compensation processing staff, and public health employees; and 6) certain critical workers, as defined by the Commissioner of DCF, at essential retail businesses, as defined in Executive Order No. 107 (2020) and subsequent Administrative Orders. The Commissioner of DCF shall have the authority to make changes to this list.

EO-110 should hopefully alleviate the impact that Executive Order No. 104 (EO-104) has had on law enforcement personnel and the many essential employees continuing to report for duty on a regular basis. EO-104, issued by Governor Murphy on March 16, 2020, mandated that all public, private, and parochial preschool programs, and elementary and secondary schools, including charter and renaissance schools, be closed to students as of Wednesday, March 18, 2020, and remain closed as long as EO-104 stays in effect. While EO-104 is greatly needed to suppress the spread of COVID-19, the closing of New Jersey’s schools placed great stress upon thousands of essential employees throughout the State of New Jersey. Fortunately, Governor Murphy has recognized the difficulty that closing the schools has caused in this regard as demonstrated by the issuance of this new executive order, EO-110.