On May 13, 2020 Governor Phil Murphy signed an Executive Order (EO-142) which, among other things, permits the resumption of nonessential construction and allows curbside pickup at nonessential retail businesses. However, as to be expected, things are hardly back to “business as usual,” and the Executive Order sets out significant measures that businesses are required to take to maintain proper social distancing protocols. The construction and nonessential retail provisions will take effect at 6 a.m. on Monday, May 18th.

Construction Businesses

All types of construction previously shut down as non-essential are allowed to reopen, subject to safety precautions. These precautions are specifically outlined in the Order (beginning on page 5), but generally obligate businesses to enact policies which promote social distancing and prevent the spread of COVID-19, including by:

• Staggering arrival and departure times for employees,
• Staggering breaks and meals,
• Requiring employees and visitors to wear gloves and face coverings at all times,
• Limiting the number of employees who can occupy “high risk areas” such as elevators and narrow hallways,
• Limiting the number of people who may attend a meeting in-person to no more than ten, and
• Requiring frequent sanitation of high-touch surfaces.

Businesses are required to provide, at their expense, face coverings and gloves for their employees. Additionally, with limited exception, if a visitor refuses to wear a cloth face covering and the covering cannot be provided by the business at the point of entry, then the business is required to decline entry.

The Order goes on to state that if an individual declines to wear a face covering due to a medical condition that inhibits such usage, neither the business nor its staff shall require the individual to produce medical documentation verifying the stated condition.

These requirements for the construction industry are our first glimpses as what requirements may look like for other businesses as the state continues to re-open, and we expect that similar requirements will be imposed when employees return to other office buildings.

Retail Businesses

In addition to construction businesses, non-essential retail businesses in the Garden State are approved to reopen in a limited capacity. Like the construction industry, non-essential retail businesses are required to maintain adequate policies aimed at preventing the spread of COVID-19, including:

• Not allowing customers to enter any brick-and-mortar store (i.e. – the order requires all businesses to exclusively sell goods through curbside pickup),
• Limiting in-store business to only those employees who are essential to supporting the curbside pickup business,
• Facilitating orders ahead of time via the internet, phone, text message, etc., to the extent possible,
• Requiring employees to wear face coverings and gloves when interacting with other workers or customers,
• Providing employees with additional break time to allow for frequent hand washing,
• Requiring infection control practices, and
• Requiring frequent sanitation of high-touch surfaces.

Again, the Executive Order requires the businesses to provide, at their expense, face coverings and gloves for their employees. The specific policies required under the Executive Order are outlined beginning on page 9.

Other “Car-Based” Activities

The Order also establishes that effective immediately social events and entertainment that can be enjoyed from an individual’s vehicle can resume, subject to certain social distancing requirements. This is, of course, a major revelation for New Jersey’s last remaining drive-in movie theater; but it also firmly establishes that events such as church services and other events where guests can stay in their car, can go on immediately. Finally, it confirms that to the extent they have not been already in operation, drive-through restaurant facilities are allowed to resume business.

One consistent requirement found in New Jersey’s Executive Orders concerning re-opening is the obligation of employers to provide face coverings and gloves for employees. Thus, it is likely that as New Jersey continues to ease restrictions, businesses will be required to provide these items at their expense. For New Jersey businesses that are starting to formulate return to work plans and to prepare for re-opening, this Executive Order, as well as Executive Orders 107 and 122, which we discussed here and here, provide guidance on what the state may require. A helpful checklist for reopening can be found here.