Jonathan M. Korn and Michael R. Darbee
On May 13, 2020, Governor Phil Murphy signed Executive Order 142 (“EO 142”). Under EO 142, all “nonessential” construction projects, as defined in EO 122, “are permitted to resume” as of 6:00 a.m. on Monday, May 18, 2020.
The order requires contractors who will resume work to adopt social mitigation and infection control policies designed to stop the spread of the coronavirus. For example, EO 142 bans nonessential visitors from entering the job site; requires at least six feet of social distancing; prohibits meetings of 10 or more people; requires staggering work times and break times; and requires contractors to identify and control access to “high-risk areas,” such as bathrooms.
Also, under EO 142 businesses must require workers and visitors to wear cloth face coverings (or a more protective covering, such as a surgical mask) and must require workers to wear gloves. Every business must provide masks and gloves to its employees at its own expense. Moreover, businesses must deny access to a person who refuses to wear a face covering for non-medical reasons. However, if a person refuses to wear a face covering for medical reasons, the business and its staff cannot demand proof of the stated condition.
Finally, businesses must maintain other infection control practices. For example, business must implement policies regarding hand washing, coughing and sneezing etiquette, and proper tissue disposal. If there is no running water at the job site, businesses must provide portable washing stations with soap or hand sanitizer (containing at least 60 percent ethanol or 70 percent isopropanol). Moreover, “high touch” areas, such as bathrooms and equipment, must be regularly sanitized.
The policies are detailed in the text of EO 142 and must be displayed “in conspicuous signage” at the entrances and throughout the worksite. If you intend to commence nonessential construction, you should carefully review the text of EO 142 and implement appropriate workplace policies.
Thomas J. Szymanski
New Jersey Governor Phil Murphy recently signed S2374 into law, expanding the New Jersey Family Leave Act (“NJFLA”) and New Jersey Temporary Disability Benefits Law (“NJTDBL”) and providing additional employee protections during the coronavirus COVID-19 pandemic and future epidemics, including (1) the expansion of reasons for leave; (2) certification changes; (3) intermittent use of such leave; (4) changes related to highly compensated employees; and (5) the expansion of the scope of compensable leave under NJTDBL. These changes are effective immediately and apply retroactively to March 25, 2020.
NJFLA—Expanded Reasons for Leave
During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may use NJFLA leave for the following new reasons:
- Childcare—to care for a child due to a school or daycare closure;
- Mandatory quarantine— to care for a family member subject to mandatory quarantine; and
- Voluntary self-quarantine—to care for a family member whose doctor recommends a voluntary self-quarantine.
Continue reading “Another Round for the Garden State! New Jersey Again Changes Leave and Disability Benefits for COVID-19 Impacted Employees”
Jonathan M. Korn and Michael R. Darbee
On April 8, 2020, New Jersey Governor Phil Murphy signed Executive Order 122 (2020) (“EO 122”). EO 122 requires that the physical operation of all non-essential construction projects must cease by 8:00 p.m. on Friday, April 10, 2020. Only work on “essential construction projects” may continue to operate physically after that time.
EO 122 defines 14 categories of construction projects that are considered essential. Under EO 122, essential construction relates to the following areas:
- “[T]he delivery of health care services,” such as hospitals;
- “Transportation projects,” such as roads and bridges;
- “Utility projects,” such as projects necessary to produce and transmit electricity;
- “Residential projects” if they are exclusively designated as affordable housing;
- “Pre-K–12 schools”;
- “Projects already underway” on a single-family home or occupied apartment unit, but only if the construction crew has five or fewer individuals;
- “Projects already underway” on a residential unit, where the work must proceed in order for the unit to be occupied by the date set in a legally binding agreement;
- Projects involving facilities that manufacture, distribute, store, or service goods or products that are sold online or by essential retail businesses, as defined by Executive Order No. 107 (2020);
- “[D]ata centers or facilities that are critical to a business’ ability to function”;
- “[T]he delivery of essential social services,” such as homeless shelters;
- First responders, such as police and fire departments, related to their response to the coronavirus emergency;
- A contract with the federal, state, county, or municipal government;
- Securing or abating any hazards on a non-essential construction project site; and
- “[E]mergency repairs necessary to ensure the health and safety of residents.”
If a business is engaged in an essential construction project, it must adopt certain policies designed to mitigate the spread of the coronavirus COVID-19. Those policies are generally designed to encourage social distancing and other hygienic practices that reduce the spread of the virus. In addition, businesses engaged in essential construction projects must send home workers with symptoms of COVID-19, must notify its workers of any known exposure to COVID-19 at the worksite without violating their employees’ privacy rights, and must disinfect the worksite when a worker at the site has been diagnosed with the illness.
EO 122 will remain in effect until Governor Murphy revokes or modifies it. Unlike the Commonwealth of Pennsylvania, there does not appear to be a formal waiver process. The full text of EO 122 can be found on the State of New Jersey website here.
Blank Rome’s Princeton office and Coronavirus (“COVID-19”) Task Force are monitoring this ever-changing situation and are here to help. Please contact us if you have any questions about contract compliance during the COVID-19 crisis or any other related commercial issues.
Michael R. Darbee, Jonathan M. Korn, and Adrienne C. Rogove
The coronavirus COVID-19 health crisis has interfered with ongoing and future business arrangements throughout New Jersey. As a result, New Jersey businesses that are parties to existing contracts may have rights in the event that they, or their counterparty, are unable to meet their obligations due to COVID-19. There are several legal doctrines that New Jersey businesses may look to in these situations, including impossibility, impracticability, frustration of purpose, and force majeure.
Generally, contract liability is strict liability. This means that a party who breaches a contract is liable for damages even without fault. See Restatement (Second) of Contracts, ch. 11, Introductory Note. However, a party may be able to invoke impossibility, impracticability, frustration of purpose, or force majeure to excuse its failure to perform its contract obligations based on an unforeseen supervening event. Continue reading “When Things Are Not “Business as Usual”: COVID-19 and Contract Defenses”
On behalf of four Texas law firms, Blank Rome on March 24, 2020, successfully obtained a dismissal of a putative legal malpractice class action in Gore, et al. v. Bruce Nagel, et al., filed in the United States District Court for the District of New Jersey, alleging that the law firms violated New Jersey Court Rule 1:21-7 by charging excessive contingency fees. Plaintiffs did not allege that the Texas law firms provided incorrect advice. In underlying personal injury litigation, the Texas law firms represented Debbie Gore, a Texas resident, and Doris Lance-Smith, an Alabama resident, against Ethicon, the manufacturer of pelvic mesh products for injuries sustained after surgical implantation of these products. On May 21, 2013, and June 2, 2012, respectively, Texas resident Gore and Alabama resident Lance-Smith, entered into retainer agreements with Texas counsel to pursue their mesh claims against Ethicon. Both Plaintiffs agreed to pay a 40 percent contingency fee, and allowed their counsel to associate with other law firms without increasing the required fee. Gore’s Retainer Agreement stated that Texas law governs and that any claims “arising under [the Gore Retainer] must be filed only in a court of competent jurisdiction in Harris County, Houston, Texas.” Lance-Smith’s Retainer Agreement did not have a choice of law provision. The Plaintiffs had sustained injuries in their home states after being implanted with the allegedly defective mesh products. Continue reading “Blank Rome Obtains Dismissal of Putative Class Action for Legal Malpractice against Texas Law Firms”
The outbreak of the novel coronavirus (“COVID-19”) is impacting businesses and public life in New Jersey and around the world. From supply chain disruption, government-ordered closures, and event cancellations to employee safety concerns and social distancing recommendations, every company is facing its own unique challenges in the face of the uncertainties surrounding this global pandemic.
How Can We Help
Blank Rome’s Princeton office, as well as Blank Rome’s Coronavirus (“COVID-19”) Task Force (“Task Force”), is monitoring this ever-changing situation and is here to help. The Task Force is an interdisciplinary group of the Firm’s attorneys with decades of experience helping companies and individuals respond to the legal fallout from disruptive crises and disasters.
Our multifaceted team includes insurance recovery, labor & employment, maritime, litigation, corporate, real estate, and cybersecurity & data privacy attorneys prepared to analyze your issues from every conceivable angle to ensure a holistic, complete, and comprehensive approach to your specific needs and issues. Our Princeton attorneys are ready to assist New Jersey businesses that must respond and prepare for an evolving public health emergency.
Latest Executive Order
You can download or view the most recent Executive Order from Governor Phil Murphy of the State of New Jersey setting forth what business are deemed essential and permitted to remain operating.
Stay Informed and Updated
Our Task Force continues to update businesses on these and other emerging issues in this rapidly developing legal landscape and has developed helpful and practical preparedness guidance; answers to common questions; and other materials for both individuals and businesses affected by COVID-19.
Links to our most recent guides can be found below:
For the latest updates and to see all our COVID-19 resources, please visit our Coronavirus (“COVID-19”) Task Force page regularly or subscribe to receive our digest published twice a week.
Adrienne C. Rogove
In the last few years, the United States Supreme Court and federal courts in New Jersey and Pennsylvania have provided additional guidance on what circumstances give rise to personal jurisdiction over foreign Defendants. The Third Circuit addressed the issue of consent to jurisdiction in Danziger & DeLlano v. Morgan Verkamp, LLC, in its January 15, 2020, decision where it held that removing a case to federal court is not a waiver of the defense of personal jurisdiction. In Danziger, two law firms were engaged in a dispute over whether the plaintiff firm was entitled to a referral fee following the defendant firm’s settlement of a qui tam action allegedly referred by the Plaintiff Danziger (“Danziger”).
Danziger is a Texas law firm. Danziger alleged it referred potential qui tam clients to Morgan and Verkamp, LLC (“Morgan Verkamp”), an Ohio law firm. Danziger claimed it formed an oral contract with Morgan Verkamp to collect one-third of the attorneys’ fees as a referral fee in connection with a qui tam case filed on behalf of Michael Epp. The Epp case was settled for “hundreds of millions of dollars.” Danziger & DeLlano v. Morgan Verkamp, LLC, __ F.3d __ (3d Cir. 2020) (slip op. at 4). Continue reading “Third Circuit Adopts Rule That Removal of State Litigation to Federal Court Does Not Confer Personal Jurisdiction over the Defendant”