As many of you are aware by now, State and Local Governments across the country have split $150 billion in Federal aid under a provision of the Coronavirus Aid Relief and Economic Security (CARES) Act.  The division of these dollars, made available through the new Coronavirus Relief Fund, is allocated to each State and governmental entity based on a specific mathematical formula that was created and made part and parcel to the legislation itself.  It is important to note that Governmental use of CARES Act money is restricted to:

  1. “Necessary Expenditures” incurred as a result of the COVID-19 pandemic;
  2. The expenditures must not have been accounted for in the budget most recently approved as of the enactment of the CARES Act (March 27); and
  3. The necessary expenditures must be incurred between March and December of 2020.

Distribution of this money is based on population alone and each state is guaranteed at least $1.25 billion even if its population share would indicate a lesser amount.  However, local governmental entities (in New Jersey County Governments) with populations of 500,000 or more were also eligible to apply for and in fact did receive aid directly from the Federal Government.  When this aid was allocated to some of our Counties, those that qualified based on population were permitted to receive 45% of the amount allocated for their population, while the State of New Jersey retained the other 55% as it also “serves” that County’s particular population.

However, in addition to the foregoing, for Counties that have a population that is less than 500,000 the State of New Jersey has the ability to retain 100% of their share of the federal aid.  Based on the foregoing and as of today, the Counties within the State of New Jersey that have less than 500,000 residents have not received direct funding of their “share” of the CARES Act money and a congressional delegation led by Congresswoman Mickie Sherill has been pressuring Governor Murphy to release a proportional share of CARES Act funds to each County with a  population of less than 500,000 as a matter of fairness.

At this point in time many of you are probably asking yourselves “What does County and State CARES Act funding have to do with me and my employment as a First Responder?”  The reason that we bring this to your attention is to make you aware that many of the Counties that have already received their portion of the CARES Act aid (Bergen, Camden, Essex, Hudson, Middlesex, Monmouth, Ocean, Passaic and Union) currently have plenty of funds available to provide First Responders with “Hazard Pay” that the Federal Government has deemed to be a “Necessary Expenditure” under the CARES Act.  Furthermore, should Governor Murphy release CARES Act funds for the less populated Counties they too will have adequate money available for the authorization of Hazard Pay.

To determine if the CARES Act funding can be used for “Hazard Pay” one needs to look to the guidance that was published by the Federal Department of the Treasury on April 22nd, 2020.  Within the body of the publication it states that “…funds that a governmental agency receives from the CARES Act may be used for “Payroll expenses for public safety, public health, health care, human services, and similar employees whose services are substantially dedicated to mitigating or responding to the COVID19 public health emergency”.  However in an effort to provide definitive guidance on this statement, additional guidance was issued on May 4th, 2020 which state:

Question:

“How does a government determine whether payroll expenses for a given employee satisfy the “substantially dedicated” condition?

Answer:

The Fund is designed to provide ready funding to address unforeseen financial needs and risks created by the COVID-19 public health emergency. For this reason, and as a matter of administrative convenience in light of the emergency nature of this program, a State, territorial, local, or Tribal government may presume that payroll costs for public health and public safety employees are payments for services substantially dedicated to mitigating or responding to the COVID-19 public health emergency, unless the chief executive (or equivalent) of the relevant government determines that specific circumstances indicate otherwise.

In addition to the foregoing, the April 22nd, 2020 publication provides a non-exhaustive list of examples of costs that would not be eligible expenditures of payments under the CARES Act. These expenditure examples are:

  1. Expenses for the State share of Medicaid.
  2. Damages covered by insurance.
  3. Payroll or benefits expenses for employees whose work duties are not substantially dedicated to mitigating or responding to the COVID-19 public health emergency.
  4. Expenses that have been or will be reimbursed under any federal program, such as the reimbursement by the federal government pursuant to the CARES Act of contributions by States to State unemployment funds.
  5. Reimbursement to donors for donated items or services.
  6. Workforce bonuses other than hazard pay or overtime.
  7. Severance pay.
  8. Legal settlements.

Finally, in an effort to define “hazard pay” the May 4th, 2020 Department of the Treasury FAQ’s provide a question and answer regarding the same.  Within the document it states:

Question:

Is there a specific definition of “hazard pay”?

Answer:

Hazard Pay means additional pay for performing hazardous duty or work involving physical hardship, in each case that is related to COVID-19.

Based on the foregoing, if there was ever a doubt as to whether Hazard Pay was an authorized expenditure under the CARES Act, the Federal Government has definitively answered this question in the affirmative.  Therefore, if your County has already received its share of the CARES Act funding, the money is there and your Local should be seeking the hazard pay that you rightfully deserve.  If you work and live within one of New Jersey’s smaller counties, you too should be seeking compensation for Hazard Pay and hopefully Federal CARES Act funding will be on the way.

On account of the COVID-19 outbreak, many employers are requiring employees submit to temperature checks prior to entering the place of employment or their specific job.  For New Jersey Public Safety Officers, this is no different. To this end, the State of New Jersey and many counties, towns, and municipalities are requiring officers submit to temperature checks prior to entering places of employment such as correctional facilities and station houses and/or reporting to their specific assignments and/or posts. Recently, we had a number of unions inquire as to whether officers should be compensated for the time spent submitting to such temperature checks and waiting in line for the same.

Although it is a fact-sensitive determination, New Jersey Public Safety Officers may be compensated for submitting to temperature checks under certain circumstances. Specifically, the Fair Labor Standards Act and the Portal-to-Portal Act of 1947 provide potential avenues to obtain the same. Under these laws, the operative question will be whether the temperature check is an “integral and indispensable” part of an officer’s job. As such, questions such as whether the temperature check is mandatory prior to an officer starting his/her shift and whether the same is conducted on the employer’s premises become highly relevant.  If it can be established that the temperature check serves as a “barrier” of sorts for an officer to engage in their job, the time spent submitting to the temperature checks and waiting in line is likely compensable.

During these uncertain times and the dangers they are facing on a daily basis, it is imperative the rights of all New Jersey Public Safety Officers are protected and they are receiving the compensation to which they are due and owed. As such, please feel free to contact us to discuss this issue, or any other issue, in further detail.  Thank you for all that you are doing and stay safe.

Yesterday the New Jersey Public Employment Relations Commission (PERC) ruled that the State of New Jersey engaged in unfair labor practices by unilaterally discontinuing the payment of salary guide step increments upon the expiration of the New Jersey Law Enforcement Supervisors Association’s (NJLESA) and the New Jersey Superior Officers’ Associations (NJSOA) contracts that ran from July 1, 2011 through June 30, 2015. (Please see PERC Decision Numbers CO-2016-107 and CO-2016-118 respectively).  In rendering their decision PERC adopted the 107 page the Hearing Examiner’s recommended decision in almost its entirety.

PERC stated in the decision that the Commission and the New Jersey Courts have consistently held that changes in negotiable terms and conditions of employment must be addressed through the collective negotiations process because unilateral action is destabilizing to the employment relationship and contrary to the principles of New Jersey Employer Employee Relations Act.  However, more importantly, PERC found the Hearing Examiner’s decision to be Consistent with the New Jersey Superior Court Appellate Division’s decision and the New Jersey Supreme Court’s ruling in the case entitled In the Matter of Atlantic County

PERC stated in its ruling that the “dynamic status quo” had to be maintained in this instance due to the fact that the State of New Jersey had never before frozen or discontinued regular increments under the applicable contract language during the period when a prior contract expired and a successor agreement was negotiated. Thus the status quo included a payment system by which increments were regularly paid based on satisfactory performance, and a past practice of continued adherence to that increment system post contract expiration.

This ruling is incredibly important for New Jersey Public Employee Labor Unions as it provides for clarification of how PERC will treat Governmental increment freezes under its own case law, the dynamic status quo doctrine and the Appellate Division and Supreme Court Decisions in the case entitled In The Matter of Atlantic County.  In conclusion, New Jersey’s governing bodies are now on notice that PERC has moved away from the draconian decisions and polices that were instituted by Kellie Hatfield and Chris Christie’s PERC and the Commission is once again the impartial and unbiased administrative agency that it was created to be.

As reported by NJ.com, the Policemen’s Benevolent Association Local Number 105 (“P.B.A. #105”), the union representing rank-and-file Correctional Police Officers employed by the New Jersey Department of Corrections, among various other State employees, and the largest law enforcement union in the State of New Jersey, is demanding widespread and free testing of both its members and inmates alike at all New Jersey prisons in the wake of yet another unfortunate death of a Correctional Police Officer due to COVID-19. Of critical importance, P.B.A. #105’s demand for testing is being made whether the members, workers, or inmates are symptomatic or not.

Currently, the New Jersey Department of Corrections reports that 460 workers in the State prison system have been diagnosed with COVID-19. Moreover, 24 State Prison inmates, in all, have died so far from COVID-19 and 9 at residential community release programs have tested positive.  To put this into perspective, these totals amount to approximately one out of every ten officers have tested positive for the virus.  This is ten times greater than the positive results that have been reported within the State of New Jersey.  Currently, state employees who are not symptomatic are paying $52.00 each for COVID-19 testing according to William Sullivan, President of P.B.A. #105.

“We’re giving it to each other,” President Sullivan said of the virus. “Officers walk along 3 or 4-foot wide corridors up and down a tier with 90 inmates in cells with open bars breathing on them and each other.”  In other words, social distancing measures are impossible to maintain within a correctional facility, thereby contributing to the potential exposure and spread of COVID-19 within such facilities.

The untimely and unfortunate passing of another officer is another sad reminder of the dangers New Jersey Public Safety Officers are facing on a daily basis as a result of this deadly pandemic. As such, P.B.A. #105’s demand for widespread and free testing for officers, workers, and inmates alike, symptomatic or not, is yet another measure that must be undertaken to safeguard the lives of officers, their families, loved ones, and the public at large. It is a common sense approach that should be utilized not only on the State level, but on the County level as well. In conjunction with providing officers with proper personal protection equipment and non-congregate housing, all avenues to limit COVID-19 exposure must be utilized for those on the frontlines.

Please continue to check this blog periodically to ascertain important updates regarding all issues affecting New Jersey Public Safety Officers.  We continue to thank you for your dedicated and noble service during these unprecedented times.  Stay safe.

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 Patch.com, 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 NJ.com, 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.