Seyfarth Synopsis: Governor Murphy has signed Executive Order 192 which (1) requires all employers to take precise precautions to protect their workforces during the COVID-19 pandemic, and (2) creates a streamlined reporting channel for employee complaints. New Jersey has also issued updated guidance on indoor and outdoor gatherings, which specifies the applicable limits for different types of gatherings.
All NJ Employers Must Take Precise Precautions to Protect Their Workforces
Beginning November 5, 2020 at 6:00 a.m., every employer that requires or permits its workforce to be physically present at a worksite must abide by the following requirements, at a minimum, to protect employees, customers and others who come into physical contact with its operations:
1. Require that individuals at the worksite maintain at least six feet of distance from one another, to the maximum extent possible. Where the nature of the employee’s work or the work area does not allow for six feet of distance to be maintained at all times, employers must ensure that each such employee wears a mask (as specified below) and must install physical barriers between workstations wherever possible.
2. Require employees, customers, visitors, and other individuals entering the worksite to wear cloth or disposable face masks, in accordance with Centers for Disease Control and Prevention (“CDC”) recommendations.
Masking requirements specific to employees include:
- Employers may permit employees to remove face masks when the employees are situated at their workstations and are more than six feet from other individuals at the workplace, or when an individual is alone in a walled office;
- Employers must make available, at their expense, cloth or disposable face masks to their employees;
- Employees may choose to wear a surgical-grade mask or other more protective face mask, and employers remain obligated to provide employees with more protective equipment if it is otherwise required because of the nature of the work involved; and
- Employers may deny entry to the worksite to any employee who declines to wear a face mask, except when doing so would violate State or federal law. Where an employee cannot wear a mask because of a disability, an employer may, consistent with the Americans with Disabilities Act (“ADA”) and/or New Jersey Law Against Discrimination (“NJLAD”), be required to provide the employee with a reasonable accommodation unless doing so would be an undue hardship on the employer’s operations. An employer may require employees to produce medical documentation supporting claims that they are unable to wear a face mask because of a disability.
For customers and visitors, similar to the requirements above regarding employee refusals to wear face masks, employers may deny entry to the worksite to any customer or visitor who declines to wear a face mask, except when doing so would violate State or federal law. However, employers may need to provide services or goods via a reasonable accommodation to a customer or visitor who declines to wear a mask due to a disability. And, unlike the rules above regarding employees, where a customer or other visitor declines to wear a face mask due to a disability that inhibits such usage, neither the employer nor its employees can require the individual to produce medical documentation verifying the stated condition, unless production is otherwise required by State or federal law.
The Executive Order specifies that these masking provisions supersede all prior directives regarding an employer’s ability to require the production of medical documentation and to deny entry to a worksite based on a customer, employee or other visitor’s refusal to wear a face mask.
These requirements also do not apply to employers subject to Executive Order 175 (2020), which includes public, private, and parochial preschool program premises, and elementary and secondary schools, including charter and renaissance schools.
3. Provide approved sanitization materials, such as hand sanitizer that contains at least 60% alcohol and sanitizing wipes, to employees, customers and visitors at no cost to those individuals.
4. Ensure that employees practice regular hand hygiene and provide employees with sufficient break time for that purpose and access to adequate hand washing facilities. Employers may also adopt policies that require employees to wear gloves while at the worksite if the employer provides the gloves to employees.
5. Routinely clean and disinfect all high-touch areas in accordance with Department of Health (“DOH”) and CDC guidelines, particularly in spaces that are accessible to employees, customers or other individuals, and ensure cleaning procedures following a known or potential exposure are in compliance with CDC recommendations.
6. Prior to each shift, conduct daily health checks, such as temperature screenings, visual symptom checking, self-assessment checklists, and/or health questionnaires, consistent with CDC guidance. Such health checks must be consistent with the confidentiality requirements of the ADA, NJLAD and any other applicable laws, and consistent with any guidance from the Equal Employment Opportunity Commission (“EEOC”) and the New Jersey Division on Civil Rights.
7. Immediately separate and send home employees who appear to have symptoms consistent with COVID-19 illness upon arrival at work or who become sick during the day. Employers subject to the New Jersey Earned Sick Leave law, New Jersey Family Leave Act and/or federal leave laws must continue to follow the requirements of those laws when requiring employees to leave the workplace.
8. Promptly notify employees of any known exposure to COVID-19 at the worksite, consistent with the confidentiality requirements of the ADA and any other applicable laws, and consistent with EEOC guidance.
9. Clean and disinfect the worksite in accordance with CDC guidelines when an employee at the site has been diagnosed with COVID-19 illness.
10. Continue to follow guidelines and directives issued by the New Jersey DOH, the CDC and the Occupational Safety and Health Administration, as applicable, for maintaining a clean, safe and healthy work environment.
The above health and safety protocols do not apply when they interfere with the discharge of the operational duties of first responders, emergency management personnel, emergency dispatchers, health care personnel, public health personnel, court personnel, law enforcement and corrections personnel, hazardous materials responders, transit workers, child protection and child welfare personnel, housing and shelter personnel, military employees, and governmental employees engaged in emergency response activities. These requirements also do not apply to the United States government, or to religious institutions to the extent that they would prohibit the free exercise of religion.
Creation of a Streamlined Reporting Channel for Employee Complaints
The Executive Order also seeks to create a streamlined reporting channel so that employees can complain to the Department of Labor and Workforce Development (“DOL”) about employer violations of the above requirements. The DOL, in consultation with the DOH, has been charged with establishing an intake mechanism to receive complaints, as well as processes for considering and addressing such complaints. The DOH, in consultation with the DOL, has further been directed to establish a process for investigating complaints including, for example, by performing workplace inspections and issuing subpoenas for information.
The DOL has also been directed to provide compliance and safety training for employers and employees.
Penalties for Non-Compliance
Penalties for violations of the Executive Order may be imposed under, among other statutes, N.J.S.A. App. A:9-49 (violations as disorderly conduct) and -50 (aiding or abetting violation), under which penalties include imprisonment for a term not to exceed 6 months, a fine not to exceed $1,000.00, or both, in the discretion of the court.
In addition, an employer that fails to adhere to the Executive Order’s protocols may be subject to, among other actions, closure by the DOH pursuant to N.J.S.A. 26:13-8. The Order does not create a private right of action to enforce its requirements.
Updated Guidance on Indoor and Outdoor Gatherings
New Jersey has also issued updated guidance on indoor and outdoor gatherings.
Indoor gatherings are limited to 25 people or 25% of a room’s capacity, whichever number is lower. All attendees must wear face coverings and stay six feet apart. The only exceptions are weddings, funerals, memorial services, religious gatherings, and First Amendment-protected political activities, which must be limited to 150 people or 25% of a room’s capacity, whichever number is lower.
Outdoor gatherings are limited to 500 people practicing social distancing. There is no limit for outdoor gatherings for religious purposes or political activities protected under the First Amendment.
Face coverings are required in indoor public spaces and in outdoor public spaces when social distancing is difficult to maintain.
Seyfarth continues to monitor Governor Murphy’s Orders and New Jersey guidance in response to COVID-19 and will provide further updates as available. New Jersey businesses should also closely track these updates.
