Madison, NJ

The Supreme Court of New Jersey limited the application of the judicially created rule known as the “mode of operation” doctrine, which relieves a plaintiff of the burden of proving actual or constructive notice of a dangerous condition in a situation in which a dangerous condition is likely to occur as a result of the nature of the business, the property’s condition or a demonstrable pattern of conduct or incidents.

Beginning December 27, 2021, employees in New York City who perform in-person work or interact with the public must show proof that they have received, at a minimum, the first dose of a primary series or a single-dose COVID-19 vaccine. Employees will then have 45 days to show proof of their second dose of a primary series vaccine.

A recent Third Circuit decision examined the scope of the “any law pertaining to intellectual property” carveout to the immunity granted to internet platforms under the Communications Decency Act (CDA), ultimately choosing to significantly expand it to include the “nontraditional” intellectual property laws, including the right of publicity. In a previous decision addressing the same subject, the Ninth Circuit expressed concern that the interpretation that the Third Circuit now advanced will cause great uncertainty for the platforms and open the floodgates to litigation.

On June 10, 2021, the Supreme Court of New Jersey adopted the ongoing storm rule, stating that commercial landowners do not have the absolute duty, and the impossible burden, to keep sidewalks on their property free from snow or ice during an ongoing storm. The court defined two unusual circumstances or exceptions to the ongoing storm rule that could impose a duty.

Newly released updated EEOC guidance addresses COVID-19 vaccination questions only from the perspective of the EEO laws. There may be other federal, state and local laws that could impact the guidance provided by the EEOC. Employers should consult legal counsel regarding specific circumstances for individualized legal advice on COVID-19 vaccinations and related issues.

Congress has reintroduced the long-awaited Secure and Fair Enforcement (SAFE) Banking Act and related Clarifying Law Around Insurance of Marijuana (CLAIM) Act. If passed, these bills will be a game-changer for banks and insurance companies that wish to engage with plant-touching cannabis businesses and the multitudes of ancillary service providers that support the industry. Here’s how this pending legislation may impact the existing and future cannabis insurance industry and certain types of cannabis-related risks.

The U.S. Citizenship Act of 2021 proposes to roll back many of the executive actions made by President Trump, while providing a legislative path to citizenship for as many as 11 million undocumented immigrants in the United States.

While it is tempting to get together and celebrate the Holidays as we have in the past, it is important to follow Centers for Disease Control and Prevention guidance and choose activities with less risk to avoid giving the unwanted gift of COVID-19 to employees, families and friends. Skipping the mistletoe this year is a workplace best practice!

Wilson Elser attorneys present the current statutory framework, recent changes to the law in response to the novel coronavirus pandemic.

New Jersey Governor Phil Murphy signed into law a bill that significantly upends the handling of infectious disease claims in New Jersey’s workers’ compensation system. The rebuttable nature of the presumption of causation is largely illusory in that it requires an employer to prove that the employee was not exposed at work.

The Equal Employment Opportunity Commission recently issued updates to its technical assistance guidance to clarify its position on common workplace issues as businesses begin to resume in-person operations. Employers should consult legal counsel regarding specific circumstances for COVID-19-related return-to-work issues.

Employers should be prepared to address employee inquiries regarding eligibility for Families First Coronavirus Response Act child care leave. New guidance addresses whether employees may qualify for paid leave when a child attends a school operating on an alternate-day basis, when a parent chooses remote learning even though in-person instruction is available, and when a school begins the academic year with remote learning but shifts to in-person instruction if conditions permit.

Recent guidance issued in response to the prevalence of remote working arrangements due to COVID-19 applies to all remote work arrangements. The new guidance reaffirms an employer’s obligation under the Fair Labor Standards Act to track the number of hours of compensable work performed by employees who are working remotely to ensure those employees are compensated for all hours worked.

New Jersey Senate Bill 2380 expands access to workers’ compensation benefits for workers infected with COVID-19. As amended, it creates a rebuttable presumption of compensability for a broad set of COVID-19-positive workers qualifying as “essential employees” in New Jersey so long as infected individuals worked somewhere other than their own residence at the time of infection.

While the Occupational Safety and Health Administration has not mandated the wearing of facemasks in the workplace, the practice is highly recommended. There may be state and local legislative developments that could impact the guidance provided by OSHA, including state directives requiring individuals to wear facemasks in public

Relying on interim guidelines published by the U.S. Centers for Disease Control and Prevention, the EEOC has taken the position that an antibody test constitutes a medical examination under the ADA but does not meet the “job related and consistent with business necessity” standard for permissible medical inquiries. The EEOC reiterated that COVID-19 viral tests are permissible under the ADA.

The U.S. Equal Employment Opportunity Commission reminds employers to remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.

While the guidance on reopening businesses recommended by the Centers for Disease Control and Prevention is not mandatory, employers should incorporate the measures applicable to their operations and ensure compliance with directives issued by state and local authorities. Employers also should consult legal counsel regarding specific circumstances that may arise in the jurisdictions of their workplaces.

Employers are advised to consult the guidance that summarizes the CDC’s initiatives, activities and resources; proposes a general three-phase plan for reopening; and provides specific guidelines for high-risk workers, child care programs, schools and day camps, restaurants and bars, and mass transit administrators.

Beginning on May 26, 2020, employers are required to record cases of COVID-19 under guidance issued by the Occupational Safety and Health Administration. The guidance reiterates that the recording of a COVID-19 case does not in and of itself mean that an employer has violated an OSHA standard.

Small businesses that are considering applying for Paycheck Protection Program (PPP) loan forgiveness should review their unique facts and circumstances in light of updated tax guidance applicable to the taxation of PPP loan forgiveness as such guidance becomes available.

The U.S. Department of Labor has provided guidance to state workforce agencies regarding the implementation of the Pandemic Unemployment Assistance (PUA) program. It states that an employee who refuses to return to work when called back by the employer or an individual who refuses an offer of work are no longer eligible for the PUA program, unless the individual remains unable to work as a direct result of COVID-19.

Recent updates to the EEOC’s COVID-19-related guidance address the return to work and accommodation of employees who may have underlying conditions that put them at greater risk. State and local legislative developments could impact the guidance provided by the EEOC, so employers should consult legal counsel regarding specific circumstances that may arise in the workplace.

Due to the difficulties COVID-19 restrictions may cause those renewing identification documents, beginning May 1, 2020, identity documents found in List B that are set to expire on or after March 1, 2020, and not otherwise extended by the issuing authority, may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

The U.S. Department of Labor published guidance about the notice requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act during the COVID-19 pandemic. The guidance takes the form of frequently asked questions posed by employers, employees and state agencies.

The latest EEOC update on COVID-19-related workplace guidance pertains to disability-related inquiries and medical exams and advises that employers may, consistent with the requirements of the Americans with Disabilities Act, administer COVID-19 testing to employees before they enter the workplace.

The Equal Employment Opportunity Commission has updated its technical assistance guidance regarding Equal Opportunity laws in the areas of reasonable accommodation, pandemic-related discrimination and harassment, and return to work issues.

Telemedicine pre-COVID-19 was largely for the convenience of the patient/clinician or to provide inexpensive care. Today it has moved into the realm of protective medicine that can help avoid the spread of the virus to other patients and health care providers.

New Jersey’s recently enacted Honig Act states “it shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the Cannabis Regulatory Commission established pursuant to the law. The Act defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.”

Last month, the NJ Department of Health announced it had revised the state’s medicinal marijuana program to expand its availability to more patients and extend its reach by reducing patient costs and adding more than two dozen diseases and symptoms as qualifying conditions for treatment.

Marijuana legalization by legislation is still an option in New Jersey, but for now the adult use of legalized recreational marijuana has been put on the back burner, and most likely will be decided by the people of New Jersey in 2020.

Individuals should contact their wealth and estate planning advisors to ascertain whether any of the strategies they are currently using should be updated or modified and whether there are any strategies they are not currently using that might be lost after January 1, 2020.

On March 25, 2019, the New Jersey Legislature cancelled a planned vote on a bill that would have legalized recreational marijuana for adults 21 years and older. Governor Phil Murphy’s contingency plan for the vote’s cancellation includes adding between 30 and 50 licenses for those who cultivate medical marijuana and later expand licenses for manufacturers and dispensaries that sell it.

In the past, the benefits of basis step-up were outweighed by the reduction of estate tax that was accomplished by removing property from a taxable estate. Now it is possible that the very reverse may be true.

With new legislation looming, some observers expect New Jersey to act soon to prevent New York from gaining a first-mover advantage in legalizing adult-use recreational cannabis in the lucrative tri-state market. On the other hand, last year’s optimism proved to be premature and the many predictions of imminent action never came to fruition.

In New Jersey and several other jurisdictions, statutes of limitation and repose in construction defect litigation are hotly disputed. Although it appears that jurisdictions are expanding statutes of repose, defendants in construction defect litigation may be making headway related to other traditional defenses. The New Jersey Supreme Court has ruled that a current owner stands in the shoes of a prior owner for statute of limitations purposes, and has no right to revive what may have been a lapsed claim simply because of a change in ownership.

DACA Renewals in the Wake of the Federal Court Preliminary Injunction.

A new U.S. Department of Homeland Security regulation improves the ability of U.S. employers to hire and retain highly skilled foreign workers and increases the ability of those workers to pursue new employment opportunities upon losing their jobs. 

“Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” – a final rule published by U.S. Citizenship and Immigration Services – is designed to improve employment-based, nonimmigrant and immigrant visa programs. Amended regulations will enable employers to retain high-skilled workers who are beneficiaries of approved immigrant visa petitions, but are not able to obtain permanent residency for 8-10 years due to crushing backlogs caused by per-country, annual limits on green cards.  The new regulation will benefit workers from over-subscribed countries, namely India, China and the Philippines.

A recent ruling by the New Jersey Supreme Court will mean that defendant landowners will now have more difficulty in early dismissals of take-home chemical exposure claims filed by non-spouses. The defendant landowners will be barred from filing Motions to Dismiss at the start of the litigation since the question of liability to a non-spouse is no longer a question of law but a fact question for which discovery is needed. 

Will the Ancient Document Exception to the Hearsay Rule become Ancient History? The proposed abrogation of the Federal Rule of Evidence regarding the “ancient documents” exception to the hearsay rule, if enacted, would be effective December 1, 2017.  While enactment would have minimal or no effect on many areas of the law, it would profoundly affect other areas such as prosecution of sexual or child predators and war criminals. Additionally, it would have implications in the environmental and coverage arena where documents more than 20 years old are frequently used to establish liability and coverage.

The New Jersey Supreme Court has held that attorneys may be liable for counsel fees if they are found to have intentionally breached their fiduciary duty to non-clients. The strong dissenting opinion filed in this matter raised the issue of a “negligent” versus an “intentional” breach and the resulting impact on professional malpractice policies. 

The Department of Homeland Security published a final rule on March 11, 2016, allowing foreign national students who receive advanced degrees in the United States in science, technology, engineering or mathematics to apply beginning on May 10, 2016, for a 24-month extension of their post-completion optional practical training. This 24-month extension replaces the current 17-month extension.

In a recent decision, the New Jersey Appellate Division held that the presence of language in an employee handbook stating that nothing in the handbook was contractually binding against the employer meant that the employer could not enforce a mandatory arbitration procedure also included in the handbook. The court felt that the employer wanted to have the benefit of a contract binding the employee on the subject of arbitration but avoid a contract when other parts of the handbook were at issue. 

A recent decision by the New Jersey Supreme Court voided an Appellate Division ruling that would have effectively decimated the right to nullify an insurance policy procured by fraud in the face of a statute or court rule mandating the need for liability insurance. 

Now binding law in the Third Circuit, all denial letters must include the plan-imposed suit limitation deadline, if any. Failure to include the deadline will result in application of the most analogous limitations period imposed under state law, which in New Jersey is the six-year statute of limitations applicable to breach of contract actions.

The Sixth Circuit has determined that wrongful denial of employee benefits will not expose plan fiduciaries to equitable remedies – such as disgorgement of profits – where restoration of benefits is adequate to make the claimant whole. But disgorgement might still be available to redress separate and distinct injuries.

The companion decisions in two recent New Jersey Supreme Court cases are favorable to insurance companies on the standard for bad faith and the difficulties that policyholders have in proving bad faith in New Jersey under the “fairly debatable” standard. However, one of the cases puts forth the suggestion that the Civil Practice Rules Committee consider three significant rule changes that could have an adverse impact on auto insurers.

On January 26, 2015, the Supreme Court of New Jersey overturned two lower-court decisions and held that the six-year statute of limitations for damage to real property does not apply to Spill Act private contribution claims.

New Jersey’s Legislature has approved a bill that is expected to come before the Governor’s Office in November 2014. If enacted, the bill’s prohibition against the production or manufacture of personal care products containing microbeads would commence January 1, 2018. The measure prohibits the sale, offer for sale or promotion of these items on or after January 1, 2019. In addition, no person will be able to sell, offer for sale or offer for promotion over-the-counter drugs containing synthetic plastic microbeads in the state beginning January 1, 2020.

A recent holding by Maryland’s Court of Special Appeals reaffirms the principle previously set forth by the same court that, despite the alleged foreseeability of harm from defective replacement parts that are made or manufactured by others, an entity generally is liable only for harm caused by products that it manufactured or otherwise introduced into the stream of commerce.

The NJ Supreme Court is poised to open arguments surrounding a 2013 decision by the Appellate Division not only accepting a six-year statute of limitations for private contribution actions under the NJ Spill Act but also applying it retroactively. If upheld, parties that have been performing remediation activities for years may encounter hurdles in recovering all of their costs. Likewise, parties beginning to perform remediation activities may face time limitations for investigating and filing their claims.

The Supreme Court recently held that the Federal Superfund law does not preempt state statutes of repose, representing a victory for companies and landowners with legacy environmental liabilities in states with a statute of repose applicable to tort claims.

Following a recent finding by New Jersey’s Appellate Division, equipment manufacturers sued in New Jersey may now be subject to liability for failure to warn of asbestos in replacement component parts neither manufactured nor required by them years after their original sale. The court found it is reasonably foreseeable that component parts would be replaced regularly as part of routine maintenance.

An intermediate New Jersey appeals court recently held that discovery with respect to a claim of bad faith against an insurer before the plaintiff has proven his or her case for coverage may “jeopardize the insurer’s defense of [an uninsured motorist or underinsured motorist claim] by disclosure of potentially privileged materials.” 

As businesses and families that were caught in the path of Hurricane Sandy begin to survey the damage, insurers are feeling the first surge of many claims to come. Now’s the time to confer with Wilson Elser’s knowledgeable and adept insurance attorneys to be certain you’ve got all contingencies covered.

This is the first in a series of alerts designed to provide you with clarity and understanding of the important and significant issues raised by this unprecedented crisis.

Wilson Elser Attorneys, William T. Bogaert, David Eisen, Joanna Piorek and Jason M. Kuzniar Co-authored Recent Developments in Professionals, Officers and Directors Liability in the Tort Trial and Insurance Practice Law Journal, Vol. 47, Issue 1, Fall 2011 published by the Tort Trial and Insurance Practice Section of the American Bar Association.

Philadelphia Insurance Companies publishes article about why employed lawyers need insurance coverage by Thomas Quinn and Steven Young.

The Employee Relations Law Journal, a quarterly employment law newsletter, recently published an article by Kevin C. Donovan that first appeared in the Wilson Elser employment newsletter

The U.S. Supreme Court declined to review a First Circuit Court of Appeals decision that seems at odds with the high court’s decision in Daubert, which required trial courts to serve as the gatekeepers of scientific expert testimony by assessing the reliability of such testimony before admitting it.

On June 21, 2011, the New Jersey Supreme Court again issued companion insurance coverage decisions that will have a profound impact upon the duty to defend under New Jersey law: Passaic Valley Sewerage Commissioners v. St. Paul Fire & Marine Insurance Company, 2011 N.J. LEXIS 686 (June 21, 2011) (PVSC) and Abouzaid v. Mansard Gardens Associates, LLC, 2011 N.J. LEXIS 684 (June 21, 2011) (Abouzaid).

On June 20, 2011, the United States Supreme Court reversed the decision of the United States Court of Appeals for the Second Circuit in American Electric Power Co. Inc., et al. v. Connecticut et al., and dismissed the federal common law nuisance climate change claim brought by several states, the City of New York and three land trusts against four private power companies and the Tennessee Valley Authority.

Arizona employers were placed on alert as the U.S. Supreme Court, amid challenges from the business community, upheld an Arizona law that (1) mandates use of the federal E-Verify program and (2) uses language in the Legal Arizona Workers Act of 2007, which relies on an exception in the 1986 Immigration Reform and Control Act, to impose "the business death penalty" on employers who "employ, or recruit or refer for a fee for employment, unauthorized aliens."

On March 30, 2011, the U.S. Supreme Court is scheduled to hear oral arguments on the issue of whether federal law preempts a state tort claim when a generic drug approved by the U.S. Food and Drug Administration (FDA) is inadequately labeled. How will the Supreme Court handle this continuing controversy related to generic drug manufacturers' obligations under the FDA regulations?

Recently, the U.S. high court denied a request for review in Comer, et al. v. Murphy Oil U.S.A., et al. That denial, in essence, reinstated the District Court's dismissal of Comer. For all practical purposes, therefore, the Comer case is "dead," without the prospect of further appellate review.

A New Jersey appellate court looked to the language in an employer's liability policy in ordering an insurer to defend a workplace accident lawsuit. A worker fell in her company's parking lot and filed for workers' compensation. Barred by law from suing her employer directly, she sued the company in its capacity as a commercial tenant. Ambiguity in the wording of the employer's liability policy was the key factor in the court finding that the insurer must pay the company's defense costs.

In our November 2010 Environmental Alert, we reported on the three nuisance-based climate change lawsuits that have been proceeding in the federal courts. On December 6, 2010, the U.S. Supreme Court granted certiorari to review one of those cases – American Electric Power Co. v. State of Connecticut (AEP).

This is the latest in a series of alerts on the federal government's efforts to curb greenhouse-gas emissions and on pending nuisance-based climate-change litigation.

On August 20, 2010, the New Jersey Appellate Division affirmed a multimillion-dollar take-home asbestos verdict against Exxon Mobil in its role as a premises owner in the case Anderson v. A.J. Friedman, 2010 N.J. Super. LEXIS 173 (App Div). The plaintiff, who worked at one of Exxon's facilities in New Jersey, had sued the company, claiming she developed the lung disease mesothelioma as a result of exposure to asbestos. There was evidence available that the plaintiff experienced dual, but separate, exposures to asbestos – as an employee of Exxon and/or as a spouse who laundered the work clothes of her husband, who also worked at Exxon.

Lending clarity to the increasing controversy surrounding Medicare's recovery rights, the New Jersey Appellate Division, in an unpublished decision, has indicated a clear intent that Medicare's recovery rights under the Medicare Secondary Payment Statute ("MSPS") are not preempted by state law, nor does the New Jersey collateral source statute permit allocation of an award to damages other than medical expenses.

In World Harvest Church, Inc. v. GuideOne Mutual Insurance Co., 2010 Ga. LEXIS 365 (May 3, 2010), the Supreme Court of Georgia answered certified questions from the U.S. Court of Appeals for the Eleventh Circuit regarding the specificity required for an effective reservation of rights letter and whether an insured must show prejudice for an insurer to be estopped from denying coverage under Georgia law.

In several recent alerts, we have advised our clients of two federal appellate decisions, Connecticut v. American Electric Power Co., Inc. (582 F.3d 309 [2d Cir. 2009]) and Comer v. Murphy Oil USA (585 F.3d 855 [5th Cir. 2009]) that have allowed lawsuits seeking damages for global warming based on the federal common law of nuisance to go forward, and one district court decision, Native Village of Kivalina v. Exxon Mobil Corp. (663 F.Supp.2d 863 [N.D.Cal. 2009]) that has dismissed such a claim.

Where an insurer's disclaimer of coverage is not based on a policy exclusion, but rather on the basis that no coverage exists in the first instance, must the carrier still comply with the stringent notice requirements of New York Insurance Law § 3420(d)(2)?  No, said the Second Circuit in its recent ruling in NGM Insurance Company v. Blakely Pumping, Inc.

Following our December 2009 advisory, "The Application of Nuisance Law to Greenhouse Gas Emissions," this is the latest in a series of client advisories concerning climate change-related liability.

Plaintiffs who had made claims for alleged global warming damages received a recent setback in the Northern District of California U.S. District Court. In Native Village of Kivalina et al vs. ExxonMobil Corporation et al. ((2000 N.D. Cal) 2009 U.S. Dist Lexis 99563), Judge Saundra Brown Armstrong granted a motion to dismiss the complaint filed against 24 oil, energy and utility companies alleging that their greenhouse gas emissions created a public nuisance and contributed to climate change brought on by global warming. This decision focuses on the fundamental problems with such claims and foretells a potential split between federal circuits and an issue that will ultimately need to be decided by the United States Supreme Court.

This is the latest in a series of client advisories concerning climate change-related liability.

In two recent decisions, the U.S. Courts of Appeals for the Second and Fifth Circuits have held that climate change lawsuits based on the common law of nuisance may proceed. Although the principal issues before the courts in each case were standing and justiciability, the courts' acceptance of the notion that the principles of nuisance law may give rise to liability for greenhouse gas emissions is telling, and may make it more likely that significant litigation on that basis will follow. The breadth of the courts' analyses further suggests that future claims may not be limited to major emitters, and that liability for damages allegedly resulting from climate change may follow.

A significant change has come to the process of environmental investigations and cleanups in New Jersey with the March 16, 2009, passage by the New Jersey State Senate and Assembly of a highly important piece of legislation – the Site Remediation Reform Act (S.1897/A.2962) (the "SRRA").  On May 7, 2009, Governor Corzine signed the SRRA into law.  This new law will dramatically change the site remediation process in New Jersey, as well as the role of the New Jersey Department of Environmental Protection ("NJDEP") and environmental consultants.

Concern over spread of the H1N1 flu virus ("swine flu") in the workplace does not relieve employers of their obligations under employee protection laws, including the federal Americans With Disabilities Act (ADA).  Indeed, as the Equal Employment Opportunity Commission (EEOC) recently noted, swine flu raises a number of potential disability discrimination issues of which employers must be aware.

On April 17, 2009, the Obama administration's Environmental Protection Agency ("EPA") issued two proposed findings regarding the following greenhouse gases ("GHGs"): carbon dioxide; methane; nitrous oxide; hydrofluorocarbons; perfluorocarbons; and sulfur hexafluoride.

In Evans v. Employee Benefit Plan, 2009 U.S. App. LEXIS 3426, 2209 WL 418628 (3d Cir. N.J. Feb. 20, 2009), the Third Circuit Court of Appeals affirmed the New Jersey District Court's decision that the insurance carrier did not abuse its discretion in denying the claimant's long term disability claim. This decision should prove useful in cases in which a claimant under a life, health or disability policy seeks to use New Jersey's regulatory ban on so-called "discretionary" clauses in such policies.